Lease Events of Default. The occurrence of any one or more of the following events (whether such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall constitute a "Lease Event of Default": (a) any representation or warranty made or deemed made by the Lessee in or in connection with the execution and delivery of this Master Lease or the other Operative Documents or the transactions contemplated hereby or thereby (including any representation or warranty contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document) shall prove to have been false or misleading in any material respect when so made, deemed made or furnished; (b) any default shall be made in the payment of any Basic Rent, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount or Lease Balance when Master Lease and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise; (c) the Lessee shall fail to pay any Fee or Supplemental Rent (other than an amount referred to in paragraph (b) above) when due under the Operative Documents and such failure shall be continuing on the tenth (10th) Business Day following the date on which the Lessee receives written notice that such amount is due and payable; (d) any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Section 10.1(a), 10.1(e), 10.2(a), 10.2(b), 10.2(c) or 10.2(d) of the Participation Agreement and, in the case of any default under Section 10.2(b) of the Participation Agreement, such default shall continue for thirty (30) days; (e) any default shall be made in the due observance or performance of any covenant, condition or agreement contained herein or in any other Operative Document (other than those specified in paragraph (b), (c) or (d) above or paragraph (l) below) and (i) in the case of any such covenant, condition or agreement contained in clauses (a) through (i) of Section 10.1 of the Participation Agreement or contained in Section 10.2 of the Participation Agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor or any Investor to the Lessee and (ii) in the case of any other such covenant, condition or agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor or any Investor to the Lessee or, if such default cannot reasonably be remedied within such thirty (30) day period, the Lessee shall have failed to remedy such default prior to the period ending on the 120th day following such notice to the Lessee or shall have failed to diligently pursue such remedy during such period; (f) the Lessee or any Lessee Subsidiary shall (i) fail to pay any principal or interest, regardless of amount, due in respect of any Indebtedness in a principal amount in excess of $20,000,000, beyond the period of grace, if any, provided in the agreement or instrument under which such Indebtedness was created, or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any such Indebtedness, or any other event shall occur or condition shall exist, beyond the period of grace, if any, provided in such agreement or instrument, if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such Indebtedness or a trustee on its or their behalf (with or without the giving of notice) to cause, such Indebtedness to become due prior to its stated maturity; (g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Lessee, or of a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000 or (iii) the winding up or liquidation of the Lessee; and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered; (h) the Lessee or any Lessee Subsidiary with assets having a gross book value in excess of $25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking Master Lease relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (g) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due or (vii) take any action for the purpose of effecting any of the foregoing; (i) one or more final judgments shall be entered by any court against the Lessee or any of the Lessee Subsidiaries for the payment of money in an aggregate amount in excess of $100,000,000 and such judgment or judgments shall not have been paid, covered by insurance, discharged or stayed for a period of sixty (60) days, or a warrant of attachment or execution or similar process shall have been issued or levied against property of the Lessee or any of the Subsidiaries to enforce any such judgment or judgments; (j) an ERISA Event shall have occurred that, in the opinion of the Lessor, when taken together with all other such ERISA Events, could reasonably be expected to result in a Material Adverse Effect; (k) a Change in Control shall occur; (l) any insurance required to be maintained by the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect or any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Article VI or Section 11.1(a); (m) any Operative Document to which the Lessee is a party or any Lien granted by the Lessee under any Operative Document shall, in whole or in material part, terminate, cease to be effective against, or (other than as expressly provided therein) cease to be the legal, valid, binding and enforceable obligation of the Lessee other than as permitted under, or pursuant to the terms of, or in connection with a transaction permitted by, any Operative Document; (n) the Lessee shall directly or indirectly contest the effectiveness, validity, binding nature or enforceability of any Operative Document or any Lien granted under any Operative Document; (o) any contract, permit or license in connection with any Property (including any in connection with the use, occupancy, zoning or operation of any Property) shall cease to be in full force and effect and such cessation, in the aggregate with any such cessation affecting any other Property, shall have had, or could reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the Fair Market Sales Value, condition, utility, remaining useful life or residual value of any Property; or (p) any Casualty or Condemnation affecting any Property shall have occurred and the aggregate Termination Base Amounts of all Properties then unaffected by any Casualty or Condemnation shall be less than 30% of the Aggregate Original Property Cost.
Appears in 1 contract
Sources: Master Lease and Deed of Trust (Itt Industries Inc)
Lease Events of Default. The occurrence of any one or more of the following events (whether such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall constitute a "Lease Event of Default":
(a) the Lessee shall fail to make payment of any Basic Rent upon the same becoming due and payable (provided, Administrative Agent has delivered the notice as to Basic Rent due pursuant to Section 4.1(a) of the Participation Agreement) and such failure shall continue unremedied for a period of three (3) Business Days after Lessee's receipt of notice thereof from Administrative Agent or Lessor Trust; or the Lessee shall fail to make payment upon the same becoming due and payable of the Lease Balance, Purchase Option Price, Loan Balance, Certificate Holder Balance, Property Balance, Property Cost, Construction Recourse Amount or Maximum Recourse Amount including, without limitation, amounts due pursuant to Sections 15.1, 15.2, 18.1, 18.2, 18.3 or 20.2 hereof or Article V of the Construction Agency Agreement; or
(b) the Lessee shall fail to make payment of any Supplemental Rent (other than as specified in clause (a) above) due and payable within three (3) Business Days after receipt of notice thereof from the party to whom Lessee is obligated to pay such Supplemental Rent; or
(c) the Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease or Guarantor shall fail to observe or perform any covenant set forth in Sections 10.1(h), (i), (j), (k) and (l) and 10.2(b) and (c) of the Participation Agreement; or
(d) Lessee or any Guarantor shall fail to observe or perform any term, covenant or condition applicable to it under any Operative Document to which it is a party (other than those described in Section 16.1(a), (b) or (c) hereof) and such failure shall not be remedied within thirty (30) days after any Responsible Officer obtaining actual knowledge of such failure or, if such default cannot reasonably be cured within such thirty (30) days period, Lessee or such Guarantor shall have failed to commence the cure of such default within such thirty (30) day period and diligently pursue such cure thereafter and in any event shall have failed to cure such default within ninety (90) days after such notice; or
(e) Lessee shall fail to observe or perform any term, covenant or condition applicable to it under Article XX of this Agreement; or
(f) any representation or warranty made or deemed made by the Lessee or any Guarantor in any Operative Document to which it is a party or in connection with the execution and delivery of this Master Lease or the other Operative Documents or the transactions contemplated hereby or thereby (including any representation or warranty which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document) Document shall prove to have been incorrect, false or misleading in any material respect when so made, on or as of the date made or deemed made or furnished;
(b) any default shall be made in the payment of any Basic Rent, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount or Lease Balance when Master Lease and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) the Lessee shall fail to pay any Fee or Supplemental Rent (other than an amount referred to in paragraph (b) above) when due under the Operative Documents and such failure misrepresentation or breach of warranty shall be continuing on the tenth (10th) Business Day following the date on which the Lessee receives written notice that such amount is due and payable;
(d) any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Section 10.1(a), 10.1(e), 10.2(a), 10.2(b), 10.2(c) or 10.2(d) of the Participation Agreement and, in the case of any default under Section 10.2(b) of the Participation Agreement, such default shall continue for thirty (30) days;
(e) any default shall be made in the due observance or performance of any covenant, condition or agreement contained herein or in any other Operative Document (other than those specified in paragraph (b), (c) or (d) above or paragraph (l) below) and (i) in the case of any such covenant, condition or agreement contained in clauses (a) through (i) of Section 10.1 of the Participation Agreement or contained in Section 10.2 of the Participation Agreement, such default shall continue have continued unremedied for a period of thirty (30) days after written notice thereof from the Lessor or any Investor has been given to the Lessee and (ii) in the case of or such Guarantor or by any other such covenant, condition or agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor or any Investor to the Lessee Participant or, if such default misrepresentation or breach cannot reasonably be remedied within such thirty (30) day period, the Lessee or such Guarantor shall have failed to remedy commence the cure of such default prior to the within such thirty (30) days period ending on the 120th day following and diligently pursue such notice to the Lessee or cure thereafter and in any event shall have failed to diligently pursue cure such remedy during default within ninety (90) days after such period;notice; or
(fg) the Lessee or any Lessee Subsidiary shall (i) fail to pay any principal a Construction Agency Agreement Event of Default arising as a result of misapplication of funds by the Construction Agent or interest, regardless the fraudulent or illegal acts or fraudulent or illegal omissions or willful misconduct of amount, due in respect of any Indebtedness in a principal amount in excess of $20,000,000, beyond the period of grace, if any, provided in the agreement or instrument under which such Indebtedness was createdConstruction Agent shall have occurred and be continuing, or (ii) fail to observe a Construction Agency Agreement Event of Default arising under Section 5.1(a) or perform 5.1(c) of the Construction Agency Agreement shall have occurred and be continuing; or
(i) The Lessee, any Guarantor or any Subsidiary or a Material Subsidiary thereof defaults (whether as primary obligor or as guarantor or other term, covenant, condition or agreement contained surety) in any agreement payment of principal of or instrument evidencing or governing interest under the Credit Agreements beyond any such Indebtednessperiod of grace provided with respect thereto, or any other event shall occur or condition shall exist, beyond the period of grace, if any, provided in such agreement or instrument, if the effect of any failure referred to in this clause (ii) is any Guarantor or any Subsidiary fails to causeperform or observe any other agreement, term or to permit condition contained in the holder or holders Credit Agreements, provided that the aggregate amount of such Indebtedness or a trustee on its or their behalf (with or without the giving of notice) to cause, such Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed all obligations in a court of competent jurisdiction seeking clauses (i) relief in respect and (ii) above as to which such a payment default shall occur and be continuing or such a failure or other event causing or permitting acceleration shall occur and be continuing exceeds $5,000,000; provided that no such event or condition which is a result of or caused by (y) Sections 10.4(d), 10.9, 10.10, 13.3 or 13.10 of the LesseeBank of America Credit Agreement, Section 5.01(d) of the Rabo Credit Agreement or Sections 5.4 or 6.1(f) of the Private Placement, or (z) a subjective standard or a determination that a material adverse effect has occurred, shall cause an Event of a substantial part of the property Default hereunder.
(i) Any Guarantor or assets of the Lessee or a Material Subsidiary thereof shall commence any Lessee Subsidiary with assets having gross book value in excess case, proceeding or other action (A) under any existing or future law of $25,000,000any jurisdiction, under Title 11 of the United States Codedomestic or foreign, as now constituted or hereafter amended, or any other Federal or state relating to bankruptcy, insolvency, receivership reorganization or similar lawrelief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (iiB) the seeking appointment of a receiver, trustee, custodian, sequestrator, conservator or other similar official for the Lessee it or for a all or any substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000 or (iii) the winding up or liquidation of the Lessee; and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Lessee or any Lessee Subsidiary with assets having a gross book value in excess of $25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking Master Lease relief under Title 11 of the United States Code, as now constituted or hereafter amendedits assets, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding Guarantor or the filing of any petition described in paragraph (g) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) shall make a general assignment for the benefit of its creditors, (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due ; or (viiii) take there shall be commenced against any Guarantor or the Lessee, any case, proceeding or other action for the purpose of effecting any of the foregoing;
a nature referred to in clause (i) one or more final judgments shall be entered by any court against above which (A) results in the Lessee entry of an order for relief or any of the Lessee Subsidiaries for the payment of money in an aggregate amount in excess of $100,000,000 and such judgment adjudication or judgments shall not have been paidappointment or (B) remains undismissed, covered by insurance, discharged undischarged or stayed unbonded for a period of sixty (60) days; or (iii) there shall be commenced against any Guarantor or the Lessee any case, proceeding or other action seeking issuance of a warrant of attachment or execution attachment, execution, restraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been issued vacated, discharged, or levied against property of stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) any Guarantor or the Lessee shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the Subsidiaries to enforce acts set forth in clauses (i), (ii) or (iii) above; or (v) any such judgment Guarantor or judgments;the Lessee shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
(j) an ERISA Event shall have occurred that, in the opinion of the Lessor, when taken together with all other such ERISA Events, could reasonably be expected to result in a Material Adverse Effect;
(k) a Change in Control shall occur;
(l) any insurance required to be maintained by the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect or any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Article VI or Section 11.1(a);
(m) any Any Operative Document to which the Lessee is a party or any Lien granted by the Lessee under any Operative Document shall, in whole or in material part, terminate, cease to be effective against, or (other than as expressly provided therein) cease to be the legal, valid, binding and enforceable obligation of any Guarantor or the Lessee other than as permitted under, or pursuant to the terms of, or in connection with a transaction permitted by, any Operative Document;party thereto; or
(nk) Any Guarantor or the Lessee shall directly or indirectly contest the effectiveness, validity, binding nature or enforceability of any Operative Document or any Lien granted under any Operative Document;
(o) ; or any contractGuarantor shall repudiate, permit or license in connection with any Property (including any in connection with purport to discontinue or terminate, the useGuaranty; or the Guaranty shall cease to be a legal, occupancy, zoning or operation valid and binding obligation of any Property) shall Guarantor or cease to be in full force and effect and such cessation, in the aggregate with any such cessation affecting any other Property, shall have had, or could reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the Fair Market Sales Value, condition, utility, remaining useful life or residual value of any Propertyeffect; or
(p) any Casualty or Condemnation affecting any Property shall have occurred and the aggregate Termination Base Amounts of all Properties then unaffected by any Casualty or Condemnation shall be less than 30% of the Aggregate Original Property Cost.
Appears in 1 contract
Lease Events of Default. The occurrence of any one or more of the following events (events, whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) , shall constitute a "Lease Event of Default":
(a) Lessee shall fail to make any representation payment of (i) Basic Rent and such failure shall continue for a period of three days or warranty made (ii) amounts payable pursuant to Section 13.1(a), Article XX, or deemed made by the Lessee in Sections 21.1(b), 22.3 or in connection with the execution and delivery of this Master Lease or the other Operative Documents or the transactions contemplated hereby or thereby (including any representation or warranty contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document) shall prove to have been false or misleading in any material respect 22.4 when so made, deemed made or furnisheddue;
(b) any default Lessee or Guarantor shall be made in the fail to make payment of any Basic Rent, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount other amount payable hereunder or Lease Balance when Master Lease and as under any of the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) the Lessee shall fail to pay any Fee or Supplemental Rent (other than an amount referred to in paragraph (b) above) when due under the Operative Documents and such failure shall be continuing on continue for a period of five (5) days after the tenth earlier of notice to Lessee or Guarantor, as the case may be, of such failure or a Responsible Officer of Lessee or Guarantor knew or reasonably should have known of such failure;
(10thc) Business Day following the date on which the Lessee receives written notice that such amount is due and payableshall fail to maintain insurance as required by Section 11.1;
(d) any default Lessee shall be made fail to purchase the Premises in accordance with Section 20.2 or Lessee shall fail to sell all of the due observance Premises on the Lease Expiration Date in accordance with and satisfaction of each of the terms, covenants, conditions and agreements set forth at Articles XXI and XXII in connection with and following its exercise of the Sale Option, including each of Lessee's obligations at Sections 21.1 and 21.2;
(e) Lessee or performance of Guarantor shall fail timely to perform or observe any covenant, condition or agreement contained (not included in Section 10.1(a), 10.1(e), 10.2(a), 10.2(b), 10.2(cany other clause of this Article XVII) to be performed or 10.2(d) of the Participation Agreement and, in the case of any default observed by it hereunder or under Section 10.2(b) of the Participation Agreement, such default shall continue for thirty (30) days;
(e) any default shall be made in the due observance or performance of any covenant, condition or agreement contained herein or in any other Operative Document (other than those specified in paragraph (b), (c) or (d) above or paragraph (l) below) and (i) in the case of any such covenant, condition or agreement contained in clauses (a) through (i) of Section 10.1 of the Participation Agreement or contained in Section 10.2 of the Participation Agreement, such default failure shall continue unremedied for a period of thirty 30 days (30but in no event later than the Lease Expiration Date) days after the earlier to occur of (i) written notice thereof to Lessee from the Lessor any Lessor, Agent or any Investor to the Lessee and Participant or (ii) in the case date upon which a Responsible Officer of any other such covenant, condition Lessee knew or agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor or any Investor to the Lessee or, if such default cannot reasonably be remedied within such thirty (30) day period, the Lessee shall should have failed to remedy such default prior to the period ending on the 120th day following such notice to the Lessee or shall have failed to diligently pursue such remedy during such periodknown thereof;
(f) the Lessee or any Lessee Subsidiary shall (i) fail to pay any principal or interest, regardless occurrence of amount, due in respect a Del Monte Event of any Indebtedness in a principal amount in excess of $20,000,000, beyond the period of grace, if any, provided in the agreement or instrument under which such Indebtedness was created, or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any such Indebtedness, or any other event shall occur or condition shall exist, beyond the period of grace, if any, provided in such agreement or instrument, if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such Indebtedness or a trustee on its or their behalf (with or without the giving of notice) to cause, such Indebtedness to become due prior to its stated maturityDefault;
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Lessee, or of a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000 or (iii) the winding up or liquidation of the Lessee; and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Lessee or any Lessee Subsidiary with assets having a gross book value in excess of $25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking Master Lease relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding Any Operative Document or the filing of any petition described security interest and lien granted under this Lease (except in paragraph (g) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit in writing accordance with its inability or fail generally to pay its debts as they become due or (vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more final judgments shall be entered by any court against the Lessee or any of the Lessee Subsidiaries for the payment of money in an aggregate amount in excess of $100,000,000 and such judgment or judgments shall not have been paid, covered by insurance, discharged or stayed for a period of sixty (60) days, or a warrant of attachment or execution or similar process shall have been issued or levied against property of the Lessee or any of the Subsidiaries to enforce any such judgment or judgments;
(j) an ERISA Event shall have occurred that, in the opinion of the Lessor, when taken together with all other such ERISA Events, could reasonably be expected to result in a Material Adverse Effect;
(k) a Change in Control shall occur;
(l) any insurance required to be maintained by the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect or any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Article VI or Section 11.1(aterms);
(m) any Operative Document to which the Lessee is a party or any Lien granted by the Lessee under any Operative Document shall, in whole or in material part, terminateterminates, cease ceases to be effective against, or (other than as expressly provided therein) cease ceases to be the legal, valid, valid and binding and enforceable obligation of the Lessee other than as permitted underLessee, Guarantor, or pursuant to any of their Affiliates, as the terms case may be, on account of, or in connection with as a transaction permitted byresult of, directly or indirectly, any Operative Document;
(n) the Lessee shall act or omission of Lessee, Guarantor or any of their Affiliates, or Lessee, Guarantor or any of their Affiliates, directly or indirectly contest indirectly, contests in any manner in any court the effectiveness, validity, binding nature or enforceability thereof; or the security interest and lien securing Lessee's or Guarantor's obligations under the Operative Documents, in whole or in part, ceases to be a perfected first priority security interest and lien on account of, or as a result of, directly or indirectly, any action or omission of Lessee, Guarantor of any Operative Document or any Lien granted under any Operative Documentof their Affiliates;
(oh) A Construction Agency Agreement Event of Default shall have occurred and be continuing;
(i) An Event of Default shall occur under any contract, permit or license in connection with any Property Material Credit Agreement;
(including any in connection with the use, occupancy, zoning or operation of any Propertyj) shall cease to be in full force and effect and such cessation, The Syndication (as defined in the aggregate with any such cessation affecting any other Property, shall have had, Syndication Agreement) is not fully completed on or could reasonably be expected to have, a Material Adverse Effect or a material adverse effect on before 90 days after the Fair Market Sales Value, condition, utility, remaining useful life or residual value of any PropertyDocument Closing Date; or
(pk) Lessee fails to replace any Casualty or Condemnation affecting any Property shall have occurred and Non-Funding Participant within the aggregate Termination Base Amounts of all Properties then unaffected by any Casualty or Condemnation shall be less than 30% ninety (90) day period permitted for such replacement in Section 2.17 of the Aggregate Original Property CostParticipation Agreement.
Appears in 1 contract
Sources: Master Lease (Del Monte Foods Co)
Lease Events of Default. The occurrence of any one or more of the following events (events, whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) , shall constitute a "Lease Event of Default":
(a) any representation payment of Rent or warranty made any other payment payable by Lessee hereunder or deemed made by the Lessee in or in connection with the execution and delivery of this Master Lease or the under any other Operative Documents or the transactions contemplated hereby or thereby Document shall not be paid when due and such failure shall continue unremedied for a period of 3 Business Days; (including b) any representation or warranty on the part of Lessee or Guarantor contained in any Operative Document or in any certificate, document or financial letter or other statement writing or instrument furnished or delivered to Lessor, Agent or any Lender or pursuant thereto, shall at any time under or in connection with any Operative Document) shall prove to have been false or misleading incorrect in any material respect when so made, deemed made or furnished;
(b) any default shall be made in the payment of any Basic Rentreaffirmed, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount or Lease Balance when Master Lease and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
case may be; (c) the Lessee Parent shall fail to pay any Fee or Supplemental Rent (other than an amount referred to in paragraph (b) above) when due under the Operative Documents and such failure shall be continuing on the tenth (10th) Business Day following the date on which the Lessee receives written notice that such amount is due and payable;
(d) any default shall be made in the due performance or observance or performance of any term, covenant, condition or agreement contained in Section 10.1(a), 10.1(e), 10.2(a), 10.2(b), 10.2(c) on its part to be performed or 10.2(d) of the Participation Agreement and, in the case of any default observed under Section 10.2(b) 5.2 of the Participation Agreement, such or the Guaranty; (d) Lessee shall default shall continue for thirty (30) days;
(e) in any default shall be made material respect in the due performance or observance or performance of any term, covenant, condition or agreement contained herein on its part to be performed or observed under Section 9.3; (e) Lessee or Parent shall default in any other Operative Document (other than those specified in paragraph (b), (c) or (d) above or paragraph (l) below) and (i) material respect in the case performance or observance of any such other term, covenant, condition or agreement contained in clauses on their part to be performed or observed hereunder or under any Operative Document (a) through (i) and not constituting a Lease Event of Default under any other clause of this Section 10.1 of the Participation Agreement or contained in Section 10.2 of the Participation Agreement10.1), and such default shall continue unremedied for a period of thirty (30) 30 days after notice thereof from the Lessor or any Investor to the Lessee and (ii) in the case of any other such covenant, condition or agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor or any Investor to the Lessee or, if such default cannot reasonably be remedied within such thirty (30) day period, the Lessee shall have failed to remedy such default prior to the period ending on the 120th day following such notice to the Lessee or shall have failed to diligently pursue such remedy during such period;
(f) the Lessee or any Lessee Subsidiary shall after: (i) fail written notice thereof by Lessor, Agent or any Lender to pay any principal Lessee or interest, regardless of amount, due in respect of any Indebtedness in a principal amount in excess of $20,000,000, beyond the period of grace, if any, provided in the agreement or instrument under which such Indebtedness was created, Guarantor; or (ii) fail to observe Lessee or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any such Indebtedness, or any other event shall occur or condition shall exist, beyond the period of grace, if any, provided in such agreement or instrument, if the effect of any failure referred to in this clause Parent has knowledge thereof; (ii) is to cause, or to permit the holder or holders of such Indebtedness or a trustee on its or their behalf (with or without the giving of notice) to cause, such Indebtedness to become due prior to its stated maturity;f)
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Lessee, or of a substantial part of the property or assets of the Lessee Guarantor or any Lessee Subsidiary with assets having gross book value in excess that is a sublessee, assignee or transferee of $25,000,000, under Title 11 of the United States Code, as now constituted or hereafter amendedany Equipment shall generally fail to pay, or admit in writing its inability to pay, its debts as they become due, or shall voluntarily commence any other Federal case or state proceeding or file any petition under any bankruptcy, insolvency, receivership insolvency or similar lawlaw or seeking dissolution, (ii) liquidation or reorganization or the appointment of a receiver, trustee, custodian, sequestrator, conservator custodian or similar official liquidator for the Lessee itself or for a substantial part portion of its property, assets or business or to effect a plan or other arrangement with its creditors, or shall file any answer admitting the jurisdiction of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000 or (iii) the winding up or liquidation of the Lessee; court and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Lessee or any Lessee Subsidiary with assets having a gross book value in excess of $25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking Master Lease relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (g) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee, (iv) file an answer admitting the material allegations of a any involuntary petition filed against it in any such bankruptcy, insolvency or similar case or proceeding, (v) or shall be adjudicated bankrupt, or shall make a general assignment for the benefit of creditors, (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due or (vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more final judgments shall be entered by any court against the Lessee or any of the Lessee Subsidiaries for the payment of money in an aggregate amount in excess of $100,000,000 and such judgment or judgments shall not have been paid, covered by insurance, discharged or stayed for a period of sixty (60) daysconsent to, or a warrant of attachment or execution or similar process shall have been issued or levied against property of the Lessee or any of the Subsidiaries to enforce any such judgment or judgments;
(j) an ERISA Event shall have occurred that, acquiesce in the opinion of the Lessor, when taken together with all other such ERISA Events, could reasonably be expected to result in a Material Adverse Effect;
(k) a Change in Control shall occur;
(l) any insurance required to be maintained by the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect or any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Article VI or Section 11.1(a);
(m) any Operative Document to which the Lessee is a party or any Lien granted by the Lessee under any Operative Document shall, in whole or in material part, terminate, cease to be effective against, or (other than as expressly provided therein) cease to be the legal, valid, binding and enforceable obligation of the Lessee other than as permitted under, or pursuant to the terms appointment of, or in connection with a transaction permitted byreceiver, any Operative Document;
(n) the Lessee shall directly or indirectly contest the effectiveness, validity, binding nature or enforceability of any Operative Document or any Lien granted under any Operative Document;
(o) any contract, permit or license in connection with any Property (including any in connection with the use, occupancy, zoning or operation of any Property) shall cease to be in full force and effect and such cessation, in the aggregate with any such cessation affecting any other Property, shall have had, or could reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the Fair Market Sales Value, condition, utility, remaining useful life or residual value of any Property; or
(p) any Casualty or Condemnation affecting any Property shall have occurred and the aggregate Termination Base Amounts of all Properties then unaffected by any Casualty or Condemnation shall be less than 30% of the Aggregate Original Property Cost.trustee,
Appears in 1 contract
Sources: Lease Agreement (Stratosphere Corp)
Lease Events of Default. The occurrence of any one or more of the following events (whether such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall constitute a "“Lease Event of Default"”:
(a) (i) any payment of Basic Rent shall not be paid within two (2) Business Days after the date when due; (ii) any amount due pursuant to Section 18.2 hereof shall not be paid on the date due; or (iii) any payment of Supplemental Rent (other than Supplemental Rent described in the preceding clause (ii)) or any other payment payable by Lessees hereunder or under any other Operative Document (including any amount payable pursuant to Article IX to the extent not included in the preceding clause (ii)) shall not be paid within ten (10) Business Days after the date when due; or
(b) any representation or warranty made or deemed made by the Lessee in or in connection with the execution and delivery of this Master any Lease or the other Operative Documents or the transactions contemplated hereby or thereby (including any representation or warranty Obligor contained in any certificate, document or financial or other statement furnished at any time under Operative Document to which such Person is a party or in any document furnished to any Creditor in connection with any Operative Document) therewith shall prove to have been false be incorrect or misleading incomplete in any material respect when so made, deemed made or furnished;
(b) any default shall be made in the payment of any Basic Rentreaffirmed, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount or Lease Balance when Master Lease and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;case may be; or
(c) the Lessee shall fail to pay any Fee or Supplemental Rent (other than an amount referred to in paragraph (b) above) when due under the Operative Documents and such failure shall be continuing on the tenth (10th) Business Day following the date on which the Lessee receives written notice that such amount is due and payable;
(d) any a default shall be made occur in the due performance or observance or performance of any term, covenant, condition or agreement contained in to be performed or observed on the part of any applicable Lease Obligor under Section 10.1(a)6.1, 10.1(e)13.1, 10.2(a)13.2, 10.2(b)Article XVIII, 10.2(c) XIX or 10.2(dXXI hereof, or Section 6.1(p)(x) of the Participation Agreement andin any respect that is materially adverse to the interests of the Creditors, or Section 6.1 of the Participation Agreement (other than Sections 6.1(a) through 6.1(n), 6.1(p), 6.1(w), 6.1(y), or 6.1(bb)); or
(d) a default shall occur in the case performance or observance of any default term, covenant, condition or agreement to be performed or observed on the part of any applicable Lease Obligor under Section 10.2(b8.1, Section 9.1, Section 10.1 hereof or Section 6.1(q) of the Participation Agreement, Agreement and such default shall continue unremedied for thirty a period of ten (3010) days;Business Days after the earlier of the date on which any Senior Officer of any Lease Obligor shall have Actual Knowledge of such default and the date on which Agent Lessee (on behalf of Lessees) and Mandalay (on behalf of Guarantors) receives written notice thereof from Trustee, Collateral Agent or any Lender; or
(e) any Lease Obligor shall default shall be made in the due performance or observance or performance of any other term, covenant, condition or agreement contained herein on its part to be performed or in observed hereunder or under any Operative Document to which such Person is a party (and not constituting an Event of Default under any other Operative Document (other than those specified in paragraph (bclause of this Section 16.1), (c) or (d) above or paragraph (l) below) and (i) in the case of any such covenant, condition or agreement contained in clauses (a) through (i) of Section 10.1 of the Participation Agreement or contained in Section 10.2 of the Participation Agreement, such default shall continue unremedied for a period of thirty (30) days after the earlier of the date on which any Senior Officer of any Lease Obligor shall have Actual Knowledge of such default and the date on which Agent Lessee (on behalf of Lessees) and Mandalay (on behalf of Guarantors) receives written notice thereof from the Lessor or any Investor to the Lessee and (ii) in the case of any other such covenant, condition or agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor or any Investor to the Lessee Creditor; or, if such default cannot reasonably be remedied within such thirty (30) day period, the Lessee shall have failed to remedy such default prior to the period ending on the 120th day following such notice to the Lessee or shall have failed to diligently pursue such remedy during such period;
(f) the Lessee insurance required by Article XIII of this Lease is not maintained and in place for any reason; or
(g) there shall occur a Change in Control; or
(h) Mandalay or any Lessee Subsidiary shall of its Significant Subsidiaries (i) fail fails to pay the principal, or any principal or interestinstallment, regardless of amount, due in respect of any present or future Indebtedness in a principal amount in excess of $20,000,00025,000,000 or more, beyond or any guaranty of present or future Indebtedness of $25,000,000 or more, on its part to be paid, when due (or within any stated grace period), whether at the period stated maturity, upon acceleration, by reason of grace, if any, provided in the agreement required prepayment or instrument under which such Indebtedness was created, otherwise or (ii) fail fails to perform or observe or perform any other term, covenant, condition covenant or agreement contained in any agreement on its part to be performed or instrument evidencing or governing any such Indebtednessobserved, or suffers any other event shall occur to occur, in connection with any present or condition shall existfuture Indebtedness of $25,000,000 or more, beyond the period or of graceany guaranty of present or future Indebtedness of $25,000,000 or more, if any, provided in as a result of such agreement failure or instrument, if sufferance any holder or holders thereof (or an agent or trustee on its or their behalf) has the effect of any failure referred right to in this clause declare such indebtedness due before the date on which it otherwise would become due; or
(iii) is to cause, or to permit Any event occurs which gives the holder or holders of such Indebtedness any Subordinated Debt (or a an agent or trustee on its or their behalf (with behalf) the right to declare such indebtedness due before the date on which it otherwise would become due, or without the giving right to require the issuer thereof to redeem or purchase, or offer to redeem or purchase, all or any portion of notice) to cause, such Indebtedness to become due prior to its stated maturity;any Subordinated Debt; or
(gj) an involuntary proceeding shall Any Operative Document, at any time after its execution and delivery and for any reason other than the agreement of the Lenders or satisfaction in full of all the Obligations ceases to be commenced in full force and effect or an involuntary petition shall be filed in is declared by a court of competent jurisdiction seeking (i) relief to be null and void, invalid or unenforceable in any respect of the Lesseewhich, or of a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000 or (iii) the winding up or liquidation of the Lessee; and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Lessee or any Lessee Subsidiary with assets having a gross book value in excess of $25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking Master Lease relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (g) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceedingevent in the reasonable opinion of the Requisite Lenders, (v) make a general assignment for is materially adverse to the benefit interests of creditors, (vi) become unable, admit the Lenders; or any Lease Obligor denies in writing its inability that it has any or fail generally further liability or obligation under any Operative Document, or purports in writing to pay its debts as they become due revoke, terminate or (vii) take any action for the purpose of effecting any of the foregoing;rescind same; or
(ik) one or more A final judgments shall be entered by judgment against any court against the Lessee Lease Obligor or any of the Lessee Mandalay’s Significant Subsidiaries is entered for the payment of money in an aggregate amount in excess of $100,000,000 and 5,000,000 and, absent procurement of a stay of execution, such judgment or judgments shall not have been paid, covered by insurance, discharged or stayed remains unsatisfied for a period thirty calendar days after the date of sixty (60) daysentry of judgment, or a in any event later than five days prior to the date of any proposed sale thereunder; or any writ or warrant of attachment or execution or similar process shall have been is issued or levied against all or any material part of the property of the Lessee any such Person and is not released, vacated or fully bonded within thirty calendar days after its issue or levy; or
(l) Any Lease Obligor or any of Mandalay’s Significant Subsidiaries institutes or consents to the Subsidiaries institution of any proceeding under a Debtor Relief Law relating to enforce it or to all or any part of its property, or is unable or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of that Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under a Debtor Relief Law relating to any such judgment Person or judgments;to all or any part of its property is instituted without the consent of that Person and continues undismissed or unstayed for 60 calendar days; or
(jm) an Any Pension Plan maintained by Mandalay or any of its Restricted Subsidiaries is determined to have a material “accumulated funding deficiency” as that term is defined in Section 302 of ERISA Event shall have occurred that, in and the opinion of the Lessor, when taken together with all other such ERISA Events, could reasonably be expected to result in is a Material Adverse Effect;
(k) a Change in Control shall occur;
(l) any insurance required to be maintained by the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect or any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Article VI or Section 11.1(a);
(m) any Operative Document to which the Lessee is a party or any Lien granted by the Lessee under any Operative Document shall, in whole or in material part, terminate, cease to be effective against, or (other than as expressly provided therein) cease to be the legal, valid, binding and enforceable obligation of the Lessee other than as permitted under, or pursuant to the terms of, or in connection with a transaction permitted by, any Operative Document;; or
(n) The occurrence of a License Revocation with respect to a license issued by any Governmental Agency of the Lessee shall directly or indirectly contest the effectiveness, validity, binding nature or enforceability State of any Operative Document or any Lien granted under any Operative Document;Nevada that continues for five calendar days; or
(o) any contract, permit or license in connection with any Property (including any in connection with the use, occupancy, zoning or operation of any Property) shall cease to be in full force and effect and such cessation, in the aggregate with any such cessation affecting any other Property, Any Lessee shall have had, sold substantially all of its interest in any Facility without also purchasing or could reasonably be expected causing a third party to have, a Material Adverse Effect or a material adverse effect on purchase the Fair Market Sales Value, condition, utility, remaining useful life or residual value of any PropertyEquipment for the Purchase Amount; or
(p) Any Lessee shall violate its covenant set forth in Section 11.1(a) and Lessor shall lose title to its interest in the Equipment if any Casualty such Lien is not removed within thirty (30) days after the attachment thereof or Condemnation affecting such loss of title is not remedied within thirty (30) days after such loss occurs; or
(q) The occurrence of an Event of Default (as such term is or may hereafter be specifically defined therein) under any Property shall have occurred and the aggregate Termination Base Amounts of all Properties then unaffected by any Casualty Mandalay Loan Agreement or Condemnation shall be less than 30% of the Aggregate Original Property CostReplacement Loan Agreement.
Appears in 1 contract
Sources: Master Lease (Mandalay Resort Group)
Lease Events of Default. The occurrence of any one or more of the following events (whether such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall constitute a "Lease Event of Default":
(a) (i) any payment of Basic Rent shall not be paid within two (2) Business Days after the date when due; (ii) any payment of the Sale Recourse Amount or any amount due pursuant to Section 9.3 of the Participation Agreement or Section 18.2 or 20.1(i) hereof shall not be paid on the date due; or (iii) any payment of Supplemental Rent (other than Supplemental Rent described in the preceding clause (ii)) or any other payment payable by Lessees hereunder or under any other Operative Document (including any amount payable pursuant to Article VII to the extent not included in the preceding clause (ii)) shall not be paid within ten (10) Business Days after the date when due; or
(b) any representation or warranty made or deemed made by the Lessee in or in connection with the execution and delivery of this Master any Lease or the other Operative Documents or the transactions contemplated hereby or thereby (including any representation or warranty Obligor contained in any certificate, document or financial or other statement furnished at any time under Operative Document to which such Person is a party or in any document furnished to any Creditor in connection with any Operative Document) therewith shall prove to have been false be incorrect or misleading incomplete in any material respect when so made, deemed made or furnished;
(b) any default shall be made in the payment of any Basic Rentreaffirmed, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount or Lease Balance when Master Lease and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;case may be; or
(c) the Lessee shall fail to pay any Fee or Supplemental Rent (other than an amount referred to in paragraph (b) above) when due under the Operative Documents and such failure shall be continuing on the tenth (10th) Business Day following the date on which the Lessee receives written notice that such amount is due and payable;
(d) any a default shall be made occur in the due performance or observance or performance of any term, covenant, condition or agreement contained in to be performed or observed on the part of any applicable Lease Obligor under Section 10.1(a)6.1, 10.1(e)13.1, 10.2(a)13.2, 10.2(b)Article XVIII, 10.2(c) XIX, XX or 10.2(dXXI hereof, or Section 6.1(p)(x) of the Participation Agreement andin any respect that is materially adverse to the interests of the Creditors, or Section 6.1 of the Participation Agreement (other than Sections 6.1(a) through 6.1(n), 6.1(p), 6.1(w), 6.1(y), or 6.1(bb)); or
(d) a default shall occur in the case performance or observance of any default term, covenant, condition or agreement to be performed or observed on the part of any applicable Lease Obligor under Section 10.2(b8.1, Section 9.1, Section 10.1 hereof or Section 6.1(q) of the Participation Agreement, Agreement and such default shall continue unremedied for thirty a period of ten (3010) days;Business Days after the earlier of the date on which any Senior Officer of any Lease Obligor shall have Actual Knowledge of such default and the date on which Agent Lessee (on behalf of Lessees) and Mandalay (on behalf of Guarantors) receives written notice thereof from Trustee, Collateral Agent or any Participant; or
(e) any Lease Obligor shall default shall be made in the due performance or observance or performance of any other term, covenant, condition or agreement contained herein on its part to be performed or in observed hereunder or under any Operative Document to which such Person is a party (and not constituting an Event of Default under any other Operative Document (other than those specified in paragraph (bclause of this Section 16.1), (c) or (d) above or paragraph (l) below) and (i) in the case of any such covenant, condition or agreement contained in clauses (a) through (i) of Section 10.1 of the Participation Agreement or contained in Section 10.2 of the Participation Agreement, such default shall continue unremedied for a period of thirty (30) days after the earlier of the date on which any Senior Officer of any Lease Obligor shall have Actual Knowledge of such default and the date on which Agent Lessee (on behalf of Lessees) and Mandalay (on behalf of Guarantors) receives written notice thereof from the Lessor or any Investor to the Lessee and (ii) in the case of any other such covenant, condition or agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor or any Investor to the Lessee Creditor; or, if such default cannot reasonably be remedied within such thirty (30) day period, the Lessee shall have failed to remedy such default prior to the period ending on the 120th day following such notice to the Lessee or shall have failed to diligently pursue such remedy during such period;
(f) the Lessee insurance required by Article XIII of this Lease is not maintained and in place for any reason; or
(g) there shall occur a Change in Control; or
(h) Mandalay or any Lessee Subsidiary shall of its Significant Subsidiaries (i) fail fails to pay the principal, or any principal or interestinstallment, regardless of amount, due in respect of any present or future Indebtedness in a principal amount in excess of $20,000,00025,000,000 or more, beyond or any guaranty of present or future Indebtedness of $25,000,000 or more, on its part to be paid, when due (or within any stated grace period), whether at the period stated maturity, upon acceleration, by reason of grace, if any, provided in the agreement required prepayment or instrument under which such Indebtedness was created, otherwise or (ii) fail fails to perform or observe or perform any other term, covenant, condition covenant or agreement contained in any agreement on its part to be performed or instrument evidencing or governing any such Indebtednessobserved, or suffers any other event shall occur to occur, in connection with any present or condition shall existfuture Indebtedness of $25,000,000 or more, beyond the period or of graceany guaranty of present or future Indebtedness of $25,000,000 or more, if any, provided in as a result of such agreement failure or instrument, if sufferance any holder or holders thereof (or an agent or trustee on its or their behalf) has the effect of any failure referred right to in this clause declare such indebtedness due before the date on which it otherwise would become due; or
(iii) is to cause, or to permit Any event occurs which gives the holder or holders of such Indebtedness any Subordinated Debt (or a an agent or trustee on its or their behalf (with behalf) the right to declare such indebtedness due before the date on which it otherwise would become due, or without the giving right to require the issuer thereof to redeem or purchase, or offer to redeem or purchase, all or any portion of notice) to cause, such Indebtedness to become due prior to its stated maturity;any Subordinated Debt; or
(gj) an involuntary proceeding shall Any Operative Document, at any time after its execution and delivery and for any reason other than the agreement of the Participants or satisfaction in full of all the Obligations ceases to be commenced in full force and effect or an involuntary petition shall be filed in is declared by a court of competent jurisdiction seeking (i) relief to be null and void, invalid or unenforceable in any respect of the Lesseewhich, or of a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000 or (iii) the winding up or liquidation of the Lessee; and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Lessee or any Lessee Subsidiary with assets having a gross book value in excess of $25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking Master Lease relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (g) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceedingevent in the reasonable opinion of the Requisite Participants, (v) make a general assignment for is materially adverse to the benefit interests of creditors, (vi) become unable, admit the Participants; or any Lease Obligor denies in writing its inability that it has any or fail generally further liability or obligation under any Operative Document, or purports in writing to pay its debts as they become due revoke, terminate or (vii) take any action for the purpose of effecting any of the foregoing;rescind same; or
(ik) one or more A final judgments shall be entered by judgment against any court against the Lessee Lease Obligor or any of the Lessee Mandalay's Significant Subsidiaries is entered for the payment of money in an aggregate amount in excess of $100,000,000 and 5,000,000 and, absent procurement of a stay of execution, such judgment or judgments shall not have been paid, covered by insurance, discharged or stayed remains unsatisfied for a period thirty calendar days after the date of sixty (60) daysentry of judgment, or a in any event later than five days prior to the date of any proposed sale thereunder; or any writ or warrant of attachment or execution or similar process shall have been is issued or levied against all or any material part of the property of the Lessee any such Person and is not released, vacated or fully bonded within thirty calendar days after its issue or levy; or
(l) Any Lease Obligor or any of Mandalay's Significant Subsidiaries institutes or consents to the Subsidiaries institution of any proceeding under a Debtor Relief Law relating to enforce it or to all or any part of its property, or is unable or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of that Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under a Debtor Relief Law relating to any such judgment Person or judgments;to all or any part of its property is instituted without the consent of that Person and continues undismissed or unstayed for 60 calendar days; or
(jm) an Any Pension Plan maintained by Mandalay or any of its Restricted Subsidiaries is determined to have a material "accumulated funding deficiency" as that term is defined in Section 302 of ERISA Event shall have occurred that, in and the opinion of the Lessor, when taken together with all other such ERISA Events, could reasonably be expected to result in is a Material Adverse Effect;
(k) a Change in Control shall occur;
(l) any insurance required to be maintained by the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect or any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Article VI or Section 11.1(a);
(m) any Operative Document to which the Lessee is a party or any Lien granted by the Lessee under any Operative Document shall, in whole or in material part, terminate, cease to be effective against, or (other than as expressly provided therein) cease to be the legal, valid, binding and enforceable obligation of the Lessee other than as permitted under, or pursuant to the terms of, or in connection with a transaction permitted by, any Operative Document;; or
(n) The occurrence of a License Revocation with respect to a license issued by any Governmental Agency of the Lessee shall directly or indirectly contest the effectiveness, validity, binding nature or enforceability State of any Operative Document or any Lien granted under any Operative Document;Nevada that continues for five calendar days; or
(o) any contract, permit or license in connection with any Property (including any in connection with the use, occupancy, zoning or operation of any Property) shall cease to be in full force and effect and such cessation, in the aggregate with any such cessation affecting any other Property, Any Lessee shall have had, sold substantially all of its interest in any Facility without also purchasing or could reasonably be expected causing a third party to have, a Material Adverse Effect or a material adverse effect on purchase the Fair Market Sales Value, condition, utility, remaining useful life or residual value of any PropertyEquipment for the Purchase Amount; or
(p) Any Lessee shall violate its covenant set forth in Section 11.1(a) and Lessor shall lose title to its interest in the Equipment if any Casualty such Lien is not removed within thirty (30) days after the attachment thereof or Condemnation affecting such loss of title is not remedied within thirty (30) days after such loss occurs; or
(q) The occurrence of an Event of Default (as such term is or may hereafter be specifically defined in) any Property shall have occurred and the aggregate Termination Base Amounts of all Properties then unaffected by any Casualty Mandalay Loan Agreement or Condemnation shall be less than 30% of the Aggregate Original Property CostReplacement Loan Agreement.
Appears in 1 contract
Sources: Master Lease (Mandalay Resort Group)
Lease Events of Default. The occurrence of any one or more of the following events (whether such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall constitute a "Lease Event of Default" and a "Lease Event of Default" as such term is defined in the Existing Lease:
(a) any representation or warranty made or deemed made by the Lessee shall fail to make payment of (i) any Basic Rent after the same has become due and payable or (ii) any Purchase Option Price, Loan Balance or Lease Balance, including amounts due pursuant to Section 15.1, 18.1, 18.2, 18.3 or 20.1; provided, however, that the failure to make any payment described in clause (i) or in connection with the execution and delivery of this Master Lease or the other Operative Documents or the transactions contemplated hereby or thereby (including any representation or warranty contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Documentii) shall prove to not constitute a Lease Event of Default so long as (x) such payment is made within five (5) days of the date such payment is due and payable, (y) such failure shall not have been false or misleading in any material respect when so madeoccurred more than five (5) times during the Term, deemed made or furnished;and (z) such failure shall not have occurred for more than two consecutive payments due under this Lease; or
(b) any default the Lessee shall be made in the fail to make payment of any Basic Rent, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount or Lease Balance when Master Lease and as the same shall become Supplemental Rent (other than Supplemental Rent referred to in clause (a) of this Section) due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;payable within five (5) Business Days after receipt of notice thereof; or
(c) the Lessee shall fail to pay any Fee maintain insurance as required by Article XIII of this Lease or Supplemental Rent (other than an amount referred to in paragraph (b) above) when due shall violate the observance of its obligations under Sections 6.1 or 8.2 hereof, or under Section 10.3 of the Operative Documents and such failure shall be continuing on the tenth (10th) Business Day following the date on which the Lessee receives written notice that such amount is due and payable;Participation Agreement; or
(d) The Lessee shall fail to observe or perform any default term, covenant or condition of the Lessee under this Lease or the Participation Agreement other than those described in Section 16.1(a), (b) or (c) hereof, or shall be made fail to perform or observe in the due observance or performance of any respect any covenant, condition or agreement contained in Section 10.1(a), 10.1(e), 10.2(a), 10.2(b), 10.2(c) to be performed or 10.2(d) of the Participation Agreement and, in the case of any default observed by it under Section 10.2(b) of the Participation Agreement, such default shall continue for thirty (30) days;
(e) any default shall be made in the due observance or performance of any covenant, condition or agreement contained herein or in any other Operative Document (other than except those specified described in paragraph (bthe parenthetical of Section 16.1(f)), (c) or (d) above or paragraph (l) below) and (i) and, in the case of any each such covenant, condition or agreement contained in clauses (a) through (i) of Section 10.1 of the Participation Agreement or contained in Section 10.2 of the Participation Agreementcase, such default failure shall continue unremedied have continued for a period of thirty (30) days after the earlier of (i) delivery to the Lessee of written notice thereof from Lessor or (ii) a Responsible Employee of the Lessee shall have knowledge of such failure; provided, however, that if such failure is capable of cure but cannot be cured by payment of money or cannot be cured by diligent efforts within such thirty (30)-day period but such diligent efforts shall be properly commenced within the cure period and the Lessee is diligently pursuing, and shall continue to pursue diligently, remedy of such failure, the cure period shall be extended for an additional period of time as may be necessary to cure not to exceed an additional one hundred fifty (150) days or to extend beyond the Expiration Date; provided further, that failure by the Lessee to fully comply with the requirements of Section 20.1 hereof shall not be subject to any cure period; or
(e) any representation or warranty made by the Lessee in any of the Operative Documents shall prove to have been inaccurate in any material respect at the time made, and if such inaccuracy can be cured, it shall not have been cured within forty-five (45) days, after the earlier of (i) delivery to the Lessee of written notice thereof from the Lessor or any Investor to the Lessee and (ii) in the case a Responsible Employee of any other such covenant, condition or agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor or any Investor to the Lessee or, if such default cannot reasonably be remedied within such thirty (30) day period, the Lessee shall have failed to remedy knowledge of such default prior to the period ending on the 120th day following such notice to the Lessee or shall have failed to diligently pursue such remedy during such period;inaccuracy; or
(f) a default by Lessee or Holding beyond any applicable grace period shall have occurred and be continuing under the Construction Agency Agreement, the Guaranty, the Guaranty Agreement, the Pledge and Security Agreement, the Existing Lease, the Swap Agreement or any "Operative Document" as such term is defined in the Existing Lease, or any of the agreements, documents or instruments executed in connection with the Mellon Revolver Facility (other than a default arising solely under Sections 6.1(o), 8.3(z), 10.1(a)(vi) and (vii) or from the Allegheny Agreements, as defined in the Existing Lease (except for a failure by Lessee to pay sums due under the Allegheny Agreements) and, during the Interim Term, Section 10.3 of the Participation Agreement under the Existing Lease (if the failure to comply with such Section shall arise from, be caused by or relate to, any act or omission of the Lessee, anything within the reasonable control of the Lessee or any anything that could have been avoided through the use of best efforts by the Lessee), Sections 3.1(d) and 3.1(j) of the Guaranty Agreement under the Existing Lease, Sections 13.2 and 16.4 of the Lease under the Existing Lease, Sections 3(a)(4), 4(i)(1) and 5(i) of the Note and Security Agreement pertaining to the Mellon Revolver Facility), or the Existing Lease shall have terminated; or
(g) the Lessee Subsidiary shall (i) fail admit in writing its inability to pay any principal or interestits debts generally as they become due, regardless of amount, due in respect of any Indebtedness in a principal amount in excess of $20,000,000, beyond the period of grace, if any, provided in the agreement or instrument under which such Indebtedness was created, or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any such Indebtedness, file a petition under the United States bankruptcy laws or any other event shall occur applicable insolvency law or condition shall exist, beyond the period of grace, if any, provided in such agreement or instrument, if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such Indebtedness or a trustee on its or their behalf (with or without the giving of notice) to cause, such Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Lessee, or of a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000, under Title 11 statute of the United States Code, as now constituted or hereafter amended, of America or any other Federal State or state bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000 or (iii) the winding up or liquidation of the Lessee; and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Lessee or any Lessee Subsidiary with assets having a gross book value in excess of $25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking Master Lease relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (g) aboveCommonwealth thereof, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of its creditors, (iv) consent to the appointment of a receiver of itself or the whole or any substantial part of its property, (v) fail to cause the discharge of any custodian, trustee or receiver appointed for it, or the whole or a substantial part of its property within sixty (60) days after such appointment, or (vi) become unablefile a petition or answer seeking or consenting to reorganization under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof; or
(h) insolvency proceedings or a petition under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof shall be filed against the Lessee and not dismissed within sixty (60) days from the date of its filing, admit in writing its inability or fail generally to pay its debts as they become due a court of competent jurisdiction shall enter an order or (vii) take any action for decree appointing, without the purpose consent of effecting the Lessee, a receiver of the Lessee, or the whole or a substantial part of any of its property, and such order or decree shall not be vacated or set aside within ninety (90) days from the foregoing;date of the entry thereof; or
(i) any member of the ERISA Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it shall have become liable to pay under Title IV of ERISA; or notice of intent to terminate a Material Plan shall be filed under Title IV of ERISA by any member of the ERISA Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Material Plan; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more final judgments shall be entered by any court against the Lessee Multiemployer Plans which could cause one or any more members of the Lessee Subsidiaries ERISA Group to incur a current payment obligation in excess of $500,000; or
(j) any final, non-appealable judgments or orders for the payment of money individually or in an the aggregate amount in excess of $100,000,000 2,695,150 (which amount shall be adjusted annually, on the date of the submission by the Lessee of the financial statements referred to in Section 10.1(a)(i) of the Participation Agreement, to an amount equal to 0.5% of the Tangible Net Worth of the Lessee as shown on such financial statements) shall be rendered against the Lessee, and such judgment or judgments order shall not have been paidcontinue unsatisfied, covered by insuranceunstayed (pursuant to laws, discharged rules or stayed court orders) and unbonded for a period of sixty thirty (6030) days, or a warrant of attachment or execution or similar process shall have been issued or levied against property of the Lessee or any of the Subsidiaries to enforce any such judgment or judgments;
(j) an ERISA Event shall have occurred that, in the opinion of the Lessor, when taken together with all other such ERISA Events, could reasonably be expected to result in a Material Adverse Effect;; or
(k) a Change an event of default (beyond any applicable grace and cure period) as defined in Control any agreement, mortgage, indenture or instrument, under which there may be issued, or by which there may be secured or evidenced, any Debt of the Lessee, whether such Debt now exists or shall occur;hereafter be created, shall occur and such Debt individually or in the aggregate shall exceed $5,393,000 (which amount shall be adjusted annually, on the date of the submission by the Lessee of the financial statements referred to in Section 10.1(a)(i) of the Participation Agreement, to an amount equal to 1.0% of the Tangible Net Worth of the Lessee as shown on such financial statements); provided, however, an Event of Default shall occur under this Section only if the event of default causing the acceleration of Debt is the result of an event of default by the Lessee that would constitute an Event of Default under this Lease, such as (by way of example) the failure to make payments when due on such Debt; or
(l) any insurance required to be maintained by the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect or any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Article VI or Section 11.1(a);
(m) any Operative Document to which the Lessee is a party or any Lien granted by the Lessee under any Operative Document shall, in whole or in material part, terminate, cease to be effective against, or (other than as expressly provided therein) cease to be the legal, valid, binding and enforceable obligation of, the Lessee as a result of any act or omission of the Lessee other than as permitted under, or pursuant to the terms of, or in connection with a transaction permitted by, any Operative Document;Lessee; or
(nm) the Lessee or Holding shall directly or indirectly contest the effectiveness, validity, binding nature or enforceability validity of any Operative Document in any manner in any court of competent jurisdiction or any Lien granted under by any Operative Document;
(o) any contract, permit or license in connection with any Property (including any in connection with the useLessee shall repudiate, occupancyor purport to discontinue or terminate, zoning the Guaranty or operation of any Property) Guaranty Agreement, or the Guaranty or Guaranty Agreement shall cease to be a legal, valid and binding obligation or shall cease to be in full force and effect and such cessation, in the aggregate with for any such cessation affecting any other Property, shall have had, or could reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the Fair Market Sales Value, condition, utility, remaining useful life or residual value of any Property; or
(p) any Casualty or Condemnation affecting any Property shall have occurred and the aggregate Termination Base Amounts of all Properties then unaffected by any Casualty or Condemnation shall be less than 30% of the Aggregate Original Property Costreason.
Appears in 1 contract
Sources: Lease and Open End Mortgage (Fore Systems Inc /De/)
Lease Events of Default. The occurrence of If any one (1) or more of the following events (whether such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall constitute each a "Lease ----- Event of Default":) shall occur and be continuing: ----------------
(a) Lessee shall fail to make payment of (i) any representation Basic Rent (except as set forth in clause (ii)) within three (3) Business Days after the same has become due and payable or warranty made (ii) any Termination Value, on the date any such payment is due and payable, or deemed made by any payment of Basic Rent or Supplemental Rent due on the Lessee in due date of any such payment of Termination Value, or in connection with any amount due on the execution and delivery of this Master Lease or the other Operative Documents or the transactions contemplated hereby or thereby (including any representation or warranty contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document) shall prove to have been false or misleading in any material respect when so made, deemed made or furnishedExpiration Date;
(bi) any default Lessee shall be made in the fail to make payment of any Basic Rent, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount Supplemental Rent (other than Supplemental Rent referred to in Section 17.1(a)(ii)) or Lease Balance when Master Lease and as the same Construction Agent shall fail to make any payment of any amount under any Operative Agreement which has become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
in either case, within three (c) the Lessee shall fail to pay any Fee or Supplemental Rent (other than an amount referred to in paragraph (b) above) when due under the Operative Documents and such failure shall be continuing on the tenth (10th3) Business Day following the date on which the Lessee receives Days after receipt of written notice that such payment is due or (ii) the Guarantor shall fail to make any payment of any amount is under any Operative Agreement which has become due and payable;
(dc) any Lessee shall fail to maintain insurance as required by Article XIV of this Lease;
(i) The Lessee shall default shall be made in the due observance or performance of any covenant, condition or agreement contained in of its obligations under Section 10.1(a), 10.1(e), 10.2(a), 10.2(b), 10.2(c) or 10.2(d8.3(o) of the Participation Agreement and, or FSB shall default in the case performance of any of its obligations under Sections 8.3A.1(h), 8.3B.1, 8.3B.2, 8.3B.3 or 8.3B.4 of the Participation Agreement or COB shall default in the performance of any of its obligations under Section 10.2(b) Sections 8.3C.1(h), 8.3D.1, 8.3D.2, 8.3D.3 or 8.3D.4 of the Participation Agreement; or (ii) Lessee shall fail to observe or perform any term, such default shall continue for thirty (30) days;
(e) any default shall be made in the due observance or performance of any covenant, obligation or condition of Lessee under this Lease or agreement contained herein or in any other Operative Document (Agreement to which Lessee is a party other than those specified set forth in paragraph Sections 17.1(a), (b), (c) or (dd)(i) above hereof, or paragraph (l) below) and (i) in the case of any such other Credit Party shall fail to observe or perform any term, covenant, obligation or condition or agreement contained in clauses (a) through (i) of Section 10.1 of the Participation such Credit Party under any Operative Agreement or contained other than those set forth in Section 10.2 of the Participation Agreement, 17.1(b) hereof and such default failure shall continue unremedied for a period of thirty (30) days after the Lessee or such Credit Party, as the case may be, either has received written notice thereof from or a Responsible Officer shall have the Lessor or any Investor to the Lessee and (ii) actual knowledge thereof; provided, that in the case of any other such covenant, condition or agreement, such default shall continue unremedied for a period of thirty this -------- clause (30) days after notice thereof from the Lessor or any Investor to the Lessee orii), if such default canfailure is not reasonably be remedied capable of remedy by the payment of money or otherwise within such thirty (30) day period, period but may be remedied with further diligence and if the Lessee or such Credit Party has and continues to pursue diligently such remedy, then the Lessee or such Credit Party shall have failed be granted additional time to pursue such remedy for such default prior period as the Agent may determine in its reasonable discretion; provided, -------- further, in no event shall such additional period exceed ninety (90) days; ------- or (iii) any representation or warranty or statement of fact made by Lessee or any other Credit Party set forth in this Lease or in any other Operative Agreement or in any document entered into in connection herewith or therewith or in any document, certificate or financial or other statement delivered in connection herewith or therewith shall be false or inaccurate in any way when made and, in the case of any representation or warranty of any Credit Party after the Closing Date relating solely to the period ending on Property, remains false or inaccurate and the 120th day following matter giving rise to such misrepresentation or breach of warranty or misstatement of fact shall continue for thirty (30) days after the earlier of actual knowledge of a Responsible Officer of a Credit Party or written notice thereof from Lessor to the Lessee or such Credit Party; provided, if such matter giving rise to such -------- misrepresentation or breach of warranty or misstatement of fact is not capable of remedy within such thirty (30) day period but may be remedied with further diligence and if Lessee or such Credit Party has and continues to pursue diligently such remedy, then Lessee or such Credit Party shall have failed be granted additional time to diligently pursue such remedy during for such periodperiod as the Agent may determine in its reasonable discretion; provided, further, in no event -------- ------- shall such additional period exceed ninety (90) days;
(e) An Agency Agreement Event of Default shall have occurred and be continuing and shall not have been expressly waived;
(f) the Lessee Any Credit Party or any Lessee Subsidiary of any Credit Party shall default (ibeyond applicable periods of grace and/or notice and cure) fail to pay in the payment when due of any principal of or interest, regardless of amount, due in respect of interest on any Indebtedness in a having an outstanding principal amount in excess of at least $20,000,000, beyond the period of grace, if any, provided in the agreement or instrument under which such Indebtedness was created, or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any such Indebtedness, 50,000,000; or any other event or condition (other than a voluntary prepayment of such Indebtedness) shall occur which enables or condition shall exist, beyond permits the period of grace, if any, provided in such agreement or instrument, if the effect holder of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such Indebtedness or a trustee any Person acting on its or their such holder's behalf (with or without to accelerate the giving of notice) to cause, such Indebtedness to become due prior to its stated maturitymaturity thereof;
(g) an involuntary proceeding shall be commenced The liquidation or dissolution of any Credit Party, or the suspension of the business of any Credit Party, or the filing by any Credit Party of a voluntary petition or an involuntary petition shall be filed in a court answer seeking reorganization, arrangement, receivership, readjustment of competent jurisdiction seeking (i) its debts, insolvency, liquidation, dissolution, winding-up or for any other relief in respect of under the LesseeBankruptcy Code or under any other insolvency act or law, state or federal, now or hereafter existing, or any other action of any Credit Party indicating its consent to, approval of or acquiescence in, any such petition or proceeding; the application by any Credit Party for, or the appointment by consent or acquiescence of any Credit Party, or the taking of possession by, a conservator, a custodian, an examiner, a liquidator, of a receiver, a trustee or a custodian of any Credit Party for all or a substantial part of its property; the property or assets of the Lessee or making by any Lessee Subsidiary with assets having gross book value in excess of $25,000,000, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000 or (iii) the winding up or liquidation of the Lessee; and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Lessee or any Lessee Subsidiary with assets having a gross book value in excess of $25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking Master Lease relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing Credit Party of any petition described in paragraph (g) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit ; the inability of any Credit Party or the admission by any Credit Party in writing of its inability or fail generally to pay its debts as they mature or any Credit Party is generally not paying its debts and other financial obligations as they become due and payable; or (vii) take any Credit Party taking any corporate action for the purpose of effecting to authorize any of the foregoing;
(h) The filing of an involuntary petition against any Credit Party in bankruptcy or seeking reorganization, arrangement, readjustment of its debts, insolvency, liquidation, dissolution, winding-up or for any other relief under the Bankruptcy Code, or under any other insolvency act or law, state or federal, now or hereafter existing; or the involuntary appointment of, or the taking of possession by, a conservator, a custodian, an examiner, a liquidator, a receiver, a trustee or a custodian of any Credit Party for all or a substantial part of its property; or the issuance of a warrant of attachment, execution or similar process against any substantial part of the property of any Credit Party, and the continuance of any of such events for sixty (60) days undismissed or undischarged;
(i) one or more final judgments shall be entered by [Reserved];
(j) The entering of any court order in any proceedings against the Lessee any Credit Party or any Subsidiary of any Credit Party decreeing the Lessee Subsidiaries dissolution, divestiture or split-up of any Credit Party or any Subsidiary of any Credit Party, and such order remains in effect for more than sixty (60) days;
(k) [Reserved];
(l) [Reserved];
(m) A final judgment or judgments for the payment of money in an aggregate amount shall be rendered by a court or courts against any Credit Party or any Subsidiary of any Credit Party in excess of $100,000,000 50,000,000 in the aggregate, and (i) the same shall not be discharged (or provision shall not be made for such discharge), or a stay of execution thereof shall not be procured, within thirty (30) days from the date of entry thereof, or (ii) any Credit Party or any such Subsidiary shall not, within said period of thirty (30) days, or such longer period during which execution of the same shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, or (iii) such judgment or judgments shall not have be discharged (or provisions shall not be made for such discharge) within thirty (30) days after a decision has been paid, covered by insurance, discharged or stayed for a period of sixty (60) days, or a warrant of attachment or execution or similar process shall have reached with respect to such appeal and the related stay has been issued or levied against property of the Lessee or any of the Subsidiaries to enforce any such judgment or judgmentslifted;
(jn) Any Credit Party or any member of the Controlled Group shall fail to pay when due an ERISA Event amount or amounts aggregating in excess of $2,000,000 which it shall have occurred that, become liable to pay to the PBGC or shall fail to pay within thirty (30) days after becoming due an amount or amounts aggregating in the opinion excess of $2,000,000 which it shall have become liable to pay to a Pension Plan under Title IV of ERISA; or notice of intent to terminate a Pension Plan or Pension Plans having aggregate Unfunded Liabilities in excess of $2,000,000 shall be filed under Title IV of ERISA by any Credit Party or any member of the LessorControlled Group, when taken together with all other any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such ERISA Events, could reasonably Pension Plan or Pension Plans or a proceeding shall be expected instituted by a fiduciary of any such Pension Plan or Pension Plans against any Credit Party or any member of the Controlled Group to result in enforce Section 515 or 4219(c)(5) of ERISA; or a Material Adverse Effectcondition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Pension Plan or Pension Plans must be terminated;
(ko) a Change in Control shall occur[Reserved];
(lp) any insurance required to be maintained by Any Operative Agreement (other than the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect Guaranty) or any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Article VI or Section 11.1(a);
(m) any Operative Document to which the Lessee is a party or any security interest and Lien granted by the Lessee under any Operative Document shallthis Lease (except in accordance with its terms), in whole or in material part, terminateterminates, cease ceases to be effective against, or (other than as expressly provided therein) cease ceases to be the legal, valid, valid and binding and enforceable obligation of any Credit Party, as the Lessee other than as permitted undercase may be, or pursuant to the terms on account of, or in connection with as a transaction permitted byresult of, directly or indirectly, any Operative Document;
(n) the act or omission of Lessee shall or any other Credit Party, or Lessee or any other Credit Party, directly or indirectly contest indirectly, contests in any manner in any court the effectiveness, validity, binding nature or enforceability of any thereof; or the security interest and Lien securing Lessee's obligations under the Operative Document Agreements, in whole or any in part, ceases to be a perfected first priority security interest and Lien granted under any Operative Document;(subject only to Permitted Liens and Lessor Liens); or
(oq) Except as to any contract, permit or license in connection with any Property (including any Credit Party which is released in connection with the useOperative Agreements, occupancy, zoning the Guaranty or operation of any Property) material provision thereof shall cease to be in full force and effect and such cessation, in the aggregate with any such cessation affecting any other Property, shall have hadeffect, or could reasonably be expected to have, a Material Adverse Effect the Guarantor or a material adverse effect any Person acting by or on behalf of the Fair Market Sales Value, condition, utility, remaining useful life Guarantor shall deny or residual value of any Propertydisaffirm the Guarantor's obligations under the Guaranty; or
(pr) Any Insured Subsidiary shall cease accepting deposits or making commercial loans on the instruction of any Casualty or Condemnation affecting any Property Bank Regulatory Authority with authority to give such instruction other than pursuant to an instruction generally applicable to banks organized under the jurisdiction of organization of such Insured Subsidiary; or
(s) Any Insured Subsidiary shall have occurred cease to be an insured bank under the FDIA and the aggregate Termination Base Amounts of all Properties then unaffected by any Casualty or Condemnation rules and regulations promulgated thereunder; or
(t) Any Insured Subsidiary shall be less than 30% required (whether or not the time allowed by the appropriate Bank Regulatory Authority for the submission of such plan has been established or elapsed) to submit a capital restoration plan of the Aggregate Original Property Costtype referred to in 12 U.S.C. (S)1831o(b)(2)(C), as amended, re-enacted or redesignated from time to time; or
(u) COFC shall Guarantee in writing the capital of any Insured Subsidiary as part of or in connection with any agreement or arrangement with any Bank Regulatory Authority; then, in any such event, Lessor may, in addition to the other rights and remedies provided for in this Article XVII and in Section 18.1, terminate this Lease by giving Lessee five (5) days written notice of such termination (provided, notwithstanding the foregoing, this Lease shall be deemed to be automatically terminated without the giving of notice upon the occurrence of a Lease Event of Default under Sections 17.1(g), (h) or (j)), and this Lease shall terminate, and all rights of Lessee under this Lease shall cease. Lessee shall, to the fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of Lessor or any other Financing Party, including without limitation reasonable fees and expenses of counsel, as a result of any Lease Event of Default hereunder. FORECLOSURE ACTION UPON THE OCCURRENCE AND CONTINUANCE OF A LEASE EVENT OF DEFAULT.
Appears in 1 contract
Lease Events of Default. The occurrence of any one or more of the following events (whether such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall constitute a "Lease Event of Default":
(a) the Lessee shall fail to make payment of any Basic Rent upon the same becoming due and payable (provided, Administrative Agent has delivered the notice as to Basic Rent due pursuant to Section 4.1(a) of the Participation Agreement) and such failure shall continue unremedied for a period of three (3) Business Days after Lessee's receipt of notice thereof from Administrative Agent or Lessor Trust; or the Lessee shall fail to make payment upon the same becoming due and payable of the Lease Balance, Purchase Option Price, Loan Balance, Certificate Holder Balance, Property Balance, Property Cost, Construction Recourse Amount or Maximum Recourse Amount including, without limitation, amounts due pursuant to Sections 15.1, 15.2, 18.1, 18.2, 18.3 or 20.2 hereof or Article V of the Construction Agency Agreement; or
(b) the Lessee shall fail to make payment of any Supplemental Rent (other than as specified in clause (a) above) due and payable within three (3) Business Days after receipt of notice thereof from the party to whom Lessee is obligated to pay such Supplemental Rent; or
(c) the Lessee shall fail to maintain insurance as required by Article XIII of this Master Lease or the Guarantor shall fail to observe or perform any covenant set forth in Sections 10.1(h), (i), (j), (k) and (l) and 10.2(b) and (c) of the Participation Agreement; or
(d) Lessee or Guarantor shall fail to observe or perform any term, covenant or condition applicable to it under any Operative Document to which it is a party (other than those described in Section 16.1(a), (b) or (c) hereof) and such failure shall not be remedied within thirty (30) days after any Responsible Officer obtaining actual knowledge of such failure or, if such default cannot reasonably be cured within such thirty (30) days period, Lessee or the Guarantor shall have failed to commence the cure of such default within such thirty (30) day period and diligently pursue such cure thereafter and in any event shall have failed to cure such default within ninety (90) days after such notice; or
(e) Lessee shall fail to observe or perform any term, covenant or condition applicable to it under Article XX of this Agreement; or
(f) any representation or warranty made or deemed made by the Lessee in or in connection with the execution and delivery of this Master Lease or the other Guarantor in any Operative Documents Document to which it is a party or the transactions contemplated hereby or thereby (including any representation or warranty which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document) Document shall prove to have been incorrect, false or misleading in any material respect when so made, on or as of the date made or deemed made or furnished;
(b) any default shall be made in the payment of any Basic Rent, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount or Lease Balance when Master Lease and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) the Lessee shall fail to pay any Fee or Supplemental Rent (other than an amount referred to in paragraph (b) above) when due under the Operative Documents and such failure misrepresentation or breach of warranty shall be continuing on the tenth (10th) Business Day following the date on which the Lessee receives written notice that such amount is due and payable;
(d) any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Section 10.1(a), 10.1(e), 10.2(a), 10.2(b), 10.2(c) or 10.2(d) of the Participation Agreement and, in the case of any default under Section 10.2(b) of the Participation Agreement, such default shall continue for thirty (30) days;
(e) any default shall be made in the due observance or performance of any covenant, condition or agreement contained herein or in any other Operative Document (other than those specified in paragraph (b), (c) or (d) above or paragraph (l) below) and (i) in the case of any such covenant, condition or agreement contained in clauses (a) through (i) of Section 10.1 of the Participation Agreement or contained in Section 10.2 of the Participation Agreement, such default shall continue have continued unremedied for a period of thirty (30) days after written notice thereof from the Lessor or any Investor has been given to the Lessee and (ii) in or the case of Guarantor or by any other such covenant, condition or agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor or any Investor to the Lessee Participant or, if such default misrepresentation or breach cannot reasonably be remedied within such thirty (30) day period, Lessee or the Lessee Guarantor shall have failed to remedy commence the cure of such default prior to the within such thirty (30) days period ending on the 120th day following and diligently pursue such notice to the Lessee or cure thereafter and in any event shall have failed to diligently pursue cure such remedy during default within ninety (90) days after such period;notice; or
(fg) the Lessee or any Lessee Subsidiary shall (i) fail to pay any principal a Construction Agency Agreement Event of Default arising as a result of misapplication of funds by the Construction Agent or interest, regardless the fraudulent or illegal acts or fraudulent or illegal omissions or willful misconduct of amount, due in respect of any Indebtedness in a principal amount in excess of $20,000,000, beyond the period of grace, if any, provided in the agreement or instrument under which such Indebtedness was createdConstruction Agent shall have occurred and be continuing, or (ii) fail to observe a Construction Agency Agreement Event of Default arising under Section 5.1(a) or perform 5.1(c) of the Construction Agency Agreement shall have occurred and be continuing; or
(i) the Lessee, the Guarantor or any Subsidiary thereof defaults (whether as primary obligor or as guarantor or other term, covenant, condition or agreement contained surety) in any agreement payment of principal of or instrument evidencing or governing interest under the Credit Agreements beyond any such Indebtednessperiod of grace provided with respect thereto, or any other event shall occur or condition shall exist, beyond the period of grace, if any, provided in such agreement or instrument, if the effect of any failure referred to in this clause (ii) is the Guarantor or any Subsidiary fails to causeperform or observe any other agreement, term or to permit condition contained in the holder or holders Credit Agreements, provided that the aggregate amount of such Indebtedness or a trustee on its or their behalf (with or without the giving of notice) to cause, such Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed all obligations in a court of competent jurisdiction seeking clauses (i) relief in respect and (ii) above as to which such a payment default shall occur and be continuing or such a failure or other event causing or permitting acceleration shall occur and be continuing exceeds $5,000,000; provided that no such event or condition which is a result of or caused by (y) Sections 10.4(d), 10.9, 10.10, 13.3 or 13.10 of the LesseeBank of America Credit Agreement, Section 5.01(d) of the Rabo Credit Agreement, Sections 5.4 or 6.1(f) of the 1998 Private Placement or Sections 9.3 or 11(f) of the 2000 Private Placement, or (z) a subjective standard or a determination that a material adverse effect has occurred, shall cause an Event of a substantial part of Default hereunder; or
(i) the property Guarantor or assets of the Lessee or a Material Subsidiary thereof shall commence any Lessee Subsidiary with assets having gross book value in excess case, proceeding or other action (A) under any existing or future law of $25,000,000any jurisdiction, under Title 11 of the United States Codedomestic or foreign, as now constituted or hereafter amended, or any other Federal or state relating to bankruptcy, insolvency, receivership reorganization or similar lawrelief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (iiB) the seeking appointment of a receiver, trustee, custodian, sequestrator, conservator or other similar official for the Lessee it or for a all or any substantial part of its assets, or the property Guarantor or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000 or (iii) the winding up or liquidation of the Lessee; and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Lessee or any Lessee Subsidiary with assets having a gross book value in excess of $25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking Master Lease relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (g) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of its creditors, (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due ; or (viiii) take there shall be commenced against the Guarantor or the Lessee, any case, proceeding or other action for the purpose of effecting any of the foregoing;
a nature referred to in clause (i) one or more final judgments shall be entered by any court against above which (A) results in the Lessee entry of an order for relief or any of the Lessee Subsidiaries for the payment of money in an aggregate amount in excess of $100,000,000 and such judgment adjudication or judgments shall not have been paidappointment or (B) remains undismissed, covered by insurance, discharged undischarged or stayed unbonded for a period of sixty (60) days; or (iii) there shall be commenced against the Guarantor or the Lessee any case, proceeding or other action seeking issuance of a warrant of attachment or execution attachment, execution, restraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been issued vacated, discharged, or levied against property of stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) the Guarantor or the Lessee shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the Subsidiaries to enforce any such judgment acts set forth in clauses (i), (ii) or judgments;(iii) above; or (v) the Guarantor or the Lessee shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
(j) an ERISA Event shall have occurred that, in the opinion of the Lessor, when taken together with all other such ERISA Events, could reasonably be expected to result in a Material Adverse Effect;
(k) a Change in Control shall occur;
(l) any insurance required to be maintained by the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect or any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Article VI or Section 11.1(a);
(m) any Operative Document to which the Lessee is a party or any Lien granted by the Lessee under any Operative Document shall, in whole or in material part, terminate, cease to be effective against, or (other than as expressly provided therein) cease to be the legal, valid, binding and enforceable obligation of the Guarantor or the Lessee other than as permitted under, or pursuant to the terms of, or in connection with a transaction permitted by, any Operative Document;party thereto; or
(nk) the Guarantor or the Lessee shall directly or indirectly contest the effectiveness, validity, binding nature or enforceability of any Operative Document or any Lien granted under any Operative Document;
(o) any contract; or the Guarantor shall repudiate, permit or license in connection with any Property (including any in connection with purport to discontinue or terminate, the useGuaranty; or the Guaranty shall cease to be a legal, occupancy, zoning valid and binding obligation of the Guarantor or operation of any Property) shall cease to be in full force and effect and such cessation, in the aggregate with any such cessation affecting any other Property, shall have had, or could reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the Fair Market Sales Value, condition, utility, remaining useful life or residual value of any Propertyeffect; or
(pl) any Casualty ground lease comprising all or Condemnation affecting part of a Property is amended, supplemental, modified or changed in any Property shall have occurred material manner without the prior written consent of Administrative Agent and Agent Certificate Holder or a default occurs under any such ground lease or any such ground lease is terminated without the aggregate Termination Base Amounts prior written consent of all Properties then unaffected by Administrative Agent and Agent Certificate Holder; or
(m) a final judgment of a court of competent jurisdiction in an amount in excess of $5,000,000 is rendered against Lessee, the Guarantor or any Casualty Subsidiary and, within sixty (60) days after entry thereof, such judgment is not discharged or Condemnation shall be less than 30% execution thereof stayed pending appeal, or within sixty (60) days after the expiration of the Aggregate Original Property Costany such stay, such judgment is not discharged.
Appears in 1 contract
Lease Events of Default. The occurrence of any one or more of the following events (whether such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order ▇▇▇ Research Corporation Amended and Restated Master Lease of any court or any order, rule or regulation of any administrative or governmental body) shall constitute a "Lease Event of Default":
(a) any representation or warranty made or deemed made by the Lessee in or in connection with the execution and delivery of this Master Lease or the other Operative Documents or the transactions contemplated hereby or thereby (including any representation or warranty contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document) shall prove to have been false or misleading in any material respect when so made, deemed made or furnished;
(b) any default shall be made in the payment of any Basic Rent, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount or Lease Balance when Master Lease and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(ci) the Lessee shall fail to pay make payment of any Fee or Supplemental Basic Rent (other than an amount referred to in paragraph (b) above) when upon the same becoming due under the Operative Documents and payable and such failure shall be continuing on the tenth (10th) Business Day following the date on which the Lessee receives written notice that such amount is due and payable;
(d) any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Section 10.1(a), 10.1(e), 10.2(a), 10.2(b), 10.2(c) or 10.2(d) of the Participation Agreement and, in the case of any default under Section 10.2(b) of the Participation Agreement, such default shall continue for thirty (30) days;
(e) any default shall be made in the due observance or performance of any covenant, condition or agreement contained herein or in any other Operative Document (other than those specified in paragraph (b), (c) or (d) above or paragraph (l) below) and (i) in the case of any such covenant, condition or agreement contained in clauses (a) through (i) of Section 10.1 of the Participation Agreement or contained in Section 10.2 of the Participation Agreement, such default shall continue unremedied for a period of thirty three (303) days or (ii) the Lessee shall fail to make payment upon the same becoming due and payable of the Lease Balance, Purchase Option Price, Property Balance, Property Cost or Maximum Recourse Amount or any amounts payable in conjunction with the payment of any of the foregoing including, without limitation, amounts due pursuant to Sections 15.1, 15.2, 18.1, 18.2, 18.3 or 20.2 hereof; or
(b) the Lessee shall fail to make payment of any Supplemental Rent (other than as specified in clause (a) above) when due and payable within five (5) days after receipt of notice thereof from the Lessor or any Investor party to whom the Lessee and (ii) in the case of any other is obligated to pay such covenant, condition or agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor or any Investor to the Lessee Supplemental Rent; or, if such default cannot reasonably be remedied within such thirty (30) day period, the Lessee shall have failed to remedy such default prior to the period ending on the 120th day following such notice to the Lessee or shall have failed to diligently pursue such remedy during such period;
(f) the Lessee or any Lessee Subsidiary shall (i) fail to pay any principal or interest, regardless of amount, due in respect of any Indebtedness in a principal amount in excess of $20,000,000, beyond the period of grace, if any, provided in the agreement or instrument under which such Indebtedness was created, or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any such Indebtedness, or any other event shall occur or condition shall exist, beyond the period of grace, if any, provided in such agreement or instrument, if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such Indebtedness or a trustee on its or their behalf (with or without the giving of notice) to cause, such Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Lessee, or of a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000 or (iii) the winding up or liquidation of the Lessee; and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Lessee or any Lessee Subsidiary with assets having a gross book value in excess of $25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking Master Lease relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (g) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due or (vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more final judgments shall be entered by any court against the Lessee or any of the Lessee Subsidiaries for the payment of money in an aggregate amount in excess of $100,000,000 and such judgment or judgments shall not have been paid, covered by insurance, discharged or stayed for a period of sixty (60) days, or a warrant of attachment or execution or similar process shall have been issued or levied against property of the Lessee or any of the Subsidiaries to enforce any such judgment or judgments;
(j) an ERISA Event shall have occurred that, in the opinion of the Lessor, when taken together with all other such ERISA Events, could reasonably be expected to result in a Material Adverse Effect;
(k) a Change in Control shall occur;
(lc) any insurance required to be maintained by the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect or the Lessee defaults in the compliance with Sections 10.1(i), (j), (k) or (l) of the Participation Agreement; or
(d) the Lessee shall fail to observe or perform any default term, covenant or condition applicable to it under any Operative Document to which it is a party (other than those described in Section 16.1(a), (b), or (c) hereof) and such failure shall not be remedied within thirty (30) days after notice thereof has been given to the Lessee; provided, that, in the event that such remedy cannot reasonably be completed within such thirty (30) day period, then Lessee shall have such additional time as shall be reasonably necessary, so long as Lessee commences such remedy within such thirty (30) day period and diligently thereafter prosecutes the same to completion, provided, further, in no event shall such period exceed ninety (90) days after such notice; or
(e) the Lessee shall fail to observe or perform any term, covenant or condition applicable to it under Article XX of this Master Lease after giving written notice to the Lessor and the Administrative Agent of the Lessee's exercise of the Remarketing Option; or
(f) any representation or warranty made or expressly deemed made by the Lessee in any Operative Document to which it is a party or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document shall prove to have been incorrect, false or misleading in any material respect on or as of the date made or expressly deemed made; or
(g) a "Default" or failure of the Lessee or any Subsidiary of the Lessee to pay when due Indebtedness or Off-Balance Sheet Obligations in an aggregate amount greater than $15,000,000 (or the Dollar Amount of Indebtedness or Off-Balance Sheet Obligations denominated in a currency other than Dollars); or the default by the Lessee or ▇▇▇ Research Corporation Amended and Restated Master Lease any Subsidiary of the Lessee in the due observance or performance of any covenantterm, provision or condition or agreement contained in Article VI any agreement under which any Indebtedness or Section 11.1(a);Off-Balance Sheet Obligations in an aggregate amount greater than $15,000,000 (or the Dollar Amount of Indebtedness or Off-Balance Sheet Obligations denominated in a currency other than Dollars) was created or is governed, the effect of which is to cause, or to permit the holder or holders of any Indebtedness or Off-Balance Sheet Obligations to cause, Indebtedness or Off-Balance Sheet Obligations in an aggregate amount greater than $15,000,000 (or the Dollar Amount of Indebtedness or Off-Balance Sheet Obligations denominated in a currency other than Dollars) to become due prior to its stated maturity; or Indebtedness or Off-Balance Sheet Obligations in an aggregate amount greater than $15,000,000 (or the Dollar Amount of Indebtedness or Off-Balance Sheet Obligations denominated in a currency other than Dollars) shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the stated maturity thereof; or
(mh) the Lessee or any Material Subsidiary shall (i) have an order for relief entered with respect to it under the Bankruptcy Code or any other bankruptcy, insolvency or other similar law as now or hereafter in effect, (ii) make an assignment for the benefit of creditors, (iii) fail to pay, or admit in writing its inability to pay, its debts generally as they become due, (iv) apply for, seek, consent to, or acquiesce in the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial portion of its Property, (v) institute any proceeding seeking an order for relief under the Bankruptcy Code or any other bankruptcy, insolvency or other similar law as now or hereafter in effect or seeking to adjudicate it as bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under the Bankruptcy Code or any other law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (vi) take any corporate action to authorize or effect any of the foregoing actions or (vii) fail to contest in good faith any appointment or proceeding described in Section 16.1(i) below; or
(i) without the application, approval or consent of the Lessee or any Material Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall be appointed for the Lessee or any Material Subsidiary or any substantial portion of the Property of any such Person, or a proceeding described in Section 16.1(h)(v) shall be instituted against the Lessee or any Material Subsidiary and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of sixty (60) consecutive days; or
(j) the Lessee or any Subsidiary of the Lessee shall fail within sixty (60) days to pay, bond or otherwise discharge any judgment or order for the payment of money in excess of $15,000,000 which is not stayed on appeal or otherwise being appropriately contested in good faith; or ▇▇▇ Research Corporation Amended and Restated Master Lease
(k) the Lessee or any other member of the Controlled Group shall fail to pay when due any amount or amounts which it shall have become liable to pay to the PBGC or to any Plan, or any notice of intent to terminate a Plan having aggregate Unfunded Vested Liabilities in excess of $5,000,000 shall be filed by a member of the Controlled Group and/or any Plan administrator, or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any such Plan, or a condition shall exist which would entitle the PBGC to obtain a decree adjudicating that any such Plan must be terminated; or
(l) any Operative Document to which the Lessee is a party or any Lien granted by the Lessee under any Operative Document shall, in whole or in material part, terminate, cease to be effective against, or (other than as expressly provided therein) cease to be the legal, valid, binding and enforceable obligation of the Lessee other than as permitted under, or pursuant to the terms of, or in connection with a transaction permitted by, any Operative Document;; or
(nm) the Lessee shall directly or indirectly contest the effectiveness, validity, binding nature or enforceability of any Operative Document or any Lien granted under any Operative Document;
(o) ; or any contractOperative Document shall cease to be a legal, permit valid and binding obligation of the Lessee or license in connection with any Property (including any in connection with the use, occupancy, zoning or operation of any Property) shall cease to be in full force and effect and such cessation, in the aggregate with any such cessation affecting any other Property, shall have had, or could reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the Fair Market Sales Value, condition, utility, remaining useful life or residual value of any Property; or
(p) any Casualty or Condemnation affecting any Property shall have occurred and the aggregate Termination Base Amounts of all Properties then unaffected by any Casualty or Condemnation shall be less than 30% of the Aggregate Original Property Costeffect.
Appears in 1 contract
Lease Events of Default. The occurrence of any one or more of the following events (whether such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall constitute a "Lease Event of Default":
(a) any representation or warranty made or deemed made by the Lessee in shall fail to make payment of (i) any Basic Rent (other than a payment of Basic Rent due on the Expiration Date or in connection with Termination Date) within five (5) Business Days after the execution same has become due and delivery of this Master Lease payable or (ii) Basic Rent, Purchase Option Price, Asset Termination Value or Residual Value Guarantee Amount or other amounts due on the Expiration Date or the other Operative Documents Termination Date, including, without limitation, amounts due pursuant to Sections 16.2, 20.1, 20.2, 20.3 or 22.1, after the transactions contemplated hereby or thereby (including any representation or warranty contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document) shall prove to have been false or misleading in any material respect when so made, deemed made or furnishedsame has become due and payable;
(b) any default Lessee shall be made in the fail to make payment of any Basic Rent, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount or Lease Balance when Master Lease Supplemental Rent (other than Supplemental Rent referred to in clause (a) of this Section) due and as payable within five (5) Business Days after the same shall has become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) the Lessee shall fail to pay any Fee or Supplemental Rent (other than an amount referred to in paragraph (b) above) when due under the Operative Documents and such failure shall be continuing on the tenth (10th) Business Day following the date on which the Lessee receives written notice that such amount is due and payablemaintain insurance as required by Article XIV of this Lease;
(d) the Lessee shall fail to observe or perform any default shall be made in term, covenant or condition of the due observance or performance of any covenantLessee under this Lease, condition or agreement contained in Section 10.1(a), 10.1(e), 10.2(a), 10.2(b), 10.2(c) or 10.2(d) of the Participation Agreement and, in the case of any default under Section 10.2(b) of the Participation Agreement, such default shall continue for thirty (30) days;
(e) any default shall be made in the due observance or performance of any covenant, condition or agreement contained herein or in any other Operative Document (to which it is a party other than those specified described in paragraph Section 17.1(a), (b), (c) or (dm) above or paragraph (l) below) and (i) in the case of any such covenanthereof, condition or agreement contained in clauses (a) through (i) of Section 10.1 of the Participation Agreement or contained in Section 10.2 of the Participation Agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor or any Investor to the Lessee and (ii) representation or warranty set forth in the case of this Lease or in any other Operative Document or in any document entered into in connection herewith or therewith or in any document, certificate or financial or other statement delivered in connection herewith or therewith shall be false or inaccurate in any Material way, and such covenant, condition failure or agreement, such default shall continue unremedied for a period misrepresentation or breach of thirty (30) days after notice thereof from the Lessor or any Investor to the Lessee or, if such default cannot reasonably be remedied within such thirty (30) day period, the Lessee shall have failed to remedy such default prior to the period ending on the 120th day following such notice to the Lessee or shall have failed to diligently pursue such remedy during such period;warranty shall
(fe) the Lessee or any Lessee Subsidiary shall (i) fail admit in writing its inability to pay any principal or interestits debts generally as they become due, regardless of amount, due in respect of any Indebtedness in a principal amount in excess of $20,000,000, beyond the period of grace, if any, provided in the agreement or instrument under which such Indebtedness was created, or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any such Indebtedness, file a petition under the United States bankruptcy laws or any other event shall occur applicable insolvency law or condition shall exist, beyond the period of grace, if any, provided in such agreement or instrument, if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such Indebtedness or a trustee on its or their behalf (with or without the giving of notice) to cause, such Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Lessee, or of a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000, under Title 11 statute of the United States Code, as now constituted or hereafter amended, of America or any other Federal State or state bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000 or (iii) the winding up or liquidation of the Lessee; and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Lessee or any Lessee Subsidiary with assets having a gross book value in excess of $25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking Master Lease relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (g) aboveCommonwealth thereof, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of its creditors, (viiv) become unableconsent to the appointment of a receiver of itself or the whole or any substantial part of its property, admit in writing its inability or fail generally to pay its debts as they become due or (viiv) take file a petition or answer seeking or consenting to reorganization under the United States bankruptcy laws or any action for the purpose of effecting any other applicable insolvency law or statute of the foregoingUnited States of America or any State or Commonwealth thereof;
(if) one insolvency proceedings or more final judgments a petition under the United States bankruptcy laws or any other applicable insolvency law or statute of the United States of America or any State or Commonwealth thereof shall be entered by any court filed against the Lessee and shall remain undismissed or any of the Lessee Subsidiaries for the payment of money unstayed and in an aggregate amount in excess of $100,000,000 and such judgment or judgments shall not have been paid, covered by insurance, discharged or stayed effect for a period of sixty (60) daysconsecutive days from the date of its filing, or a warrant court of attachment competent jurisdiction shall enter an order or execution decree appointing, without the consent of the Lessee, a custodian, trustee or similar process receiver for the Lessee or the whole or a substantial part of its property, and such order or decree shall not be vacated or set aside within sixty (60) days from the date of the entry thereof;
(g) any member of the ERISA Group shall fail to pay when due an amount or amounts aggregating in excess of $1,000,000 which it shall have been issued become liable to pay under Title IV of ERISA; or levied notice of intent to terminate a Material Plan shall be filed under Title IV of ERISA by any member of the ERISA Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Material Plan; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause one or more members of the ERISA Group to incur a current payment obligation in excess of $1,000,000;
(h) a final judgment for the payment of money in excess of $3,000,000 shall be entered against property the Lessee or any Subsidiary and such judgment is not discharged, vacated, bonded or stayed pending appeal (pursuant to laws, rules or court orders) within a period of thirty (30) days from the date of entry of such judgment;
(i) the Lessee or any of its Subsidiaries (i) shall default in the Subsidiaries to enforce any such judgment payment when due, whether at stated maturity or judgments;otherwise, of principal or interest in respect of Indebtedness having an aggregate principal amount in excess of $3,000,000 (including, without limitation,
(j) an ERISA a Guarantee Event of Default shall have occurred that, in the opinion of the Lessor, when taken together with all other such ERISA Events, could reasonably and be expected to result in a Material Adverse Effectcontinuing;
(k) if the Lessee shall not have exercised its Purchase Option pursuant to Section 20.1 hereof and the Lessee shall have validly exercised its Remarketing Option pursuant to Section 22.1 hereof, the Lessee shall have failed (A) to consummate a Change sale of the Property in Control shall occurthe manner provided therein on the Expiration Date and to pay to the Agent (or such other Person as the Agent may direct) pursuant to such Section the Residual Value Guarantee Amount and the other amounts required thereby, or (B) to purchase the Lessor's interest in the Property on the Expiration Date as provided in Section 20.2 hereof and to pay to the Lessor the Asset Termination Value therefor on the Expiration Date as required thereby;
(l) any insurance required to be maintained by the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect have abandoned or constructively abandoned all or any default shall be made in material portion of the due observance or performance Property for a period of any covenant, condition or agreement contained in Article VI or Section 11.1(a)30 consecutive days;
(m) any Operative Document to which the Lessee is a party shall have elected to or any Lien granted by be required to purchase the Lessee under any Operative Document shall, in whole or in material part, terminate, cease to be effective against, or (other than as expressly provided therein) cease to be the legal, valid, binding and enforceable obligation of the Lessee other than as permitted under, or Property pursuant to Section 16.2 hereof and such purchase shall not have been consummated on the terms of, or in connection with a transaction permitted by, any Operative DocumentTermination Date pursuant to either such Section;
(n) an Event of Default (as such term is defined in the Lessee Credit Agreement) shall directly or indirectly contest the effectiveness, validity, binding nature or enforceability of any Operative Document or any Lien granted under any Operative Document;have occurred and be continuing; or
(o) any contractthe Lessee shall fail to have delivered to the Agent, permit or license in connection with any Property (including any in connection with the use, occupancy, zoning or operation of any Property) shall cease to be in full force and effect and such cessation, in the aggregate with any such cessation affecting any other Property, shall have had, or could reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the Fair Market Sales Value, condition, utility, remaining useful life or residual value of any Property; or
(p) any Casualty or Condemnation affecting any Property shall have occurred each Participant and the aggregate Termination Base Amounts Lessor, on or before the tenth Business Day after the date hereof, an opinion of all Properties then unaffected by any Casualty or Condemnation shall be less than 30% counsel to the Lessee addressing those matters set forth in Exhibit C-3 of the Aggregate Original Property CostParticipation Agreement in form and substance reasonably satisfactory to the Agent, each Participant and the Lessor.
Appears in 1 contract
Sources: Master Lease (Chase Industries Inc)
Lease Events of Default. The occurrence of If any one or more of the following events (whether such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall constitute each a "Lease Event of Default") shall occur:
(a) Lessee shall fail to make payment of (i) any representation Basic Rent within five (5) Business Days after the same has become due and payable or warranty made (ii) any Maximum Residual Guarantee Amount, Purchase Option Price or deemed made by Termination Value after the Lessee in or in connection with the execution same has become due and delivery of this Master Lease or the other Operative Documents or the transactions contemplated hereby or thereby (including any representation or warranty contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document) shall prove to have been false or misleading in any material respect when so made, deemed made or furnished;payable; or
(b) any default Lessee shall be made in the fail to make payment of any Basic Rent, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount or Lease Balance when Master Lease and as the same shall become Supplemental Rent due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;payable within five (5) Business Days after receipt of notice thereof; or
(c) the Lessee shall fail to pay any Fee or Supplemental Rent (other than an amount referred to in paragraph (b) above) when due under the Operative Documents and such failure shall be continuing on the tenth (10th) Business Day following the date on which the Lessee receives written notice that such amount is due and payable;maintain insurance as required by Section 14; or
(d) any Guarantors shall default shall be made in the due observance or performance of any covenant, condition or agreement contained in Section 10.1(a), 10.1(e), 10.2(a), 10.2(b), 10.2(c) or 10.2(d) Sections 10 and 11 of the Participation Agreement and, in the case of any default under Section 10.2(b) of the Participation Agreement, such default shall continue for thirty (30) days;Guarantee; or
(e) Lessee or any Guarantor shall default shall be made in the due observance or performance of any covenantterm, covenant or condition of Lessee or agreement contained herein of such Guarantor, respectively, under this Lease, the Participation Agreement, the Guarantee or in any other Operative Document Agreement to which it is a party (other than those specified set forth in paragraph Section 17.1(a), (b), (c) or (d) above or paragraph (l) belowhereof) and (i) in the case of any such covenant, condition or agreement contained in clauses (a) through (i) of Section 10.1 of the Participation Agreement or contained in Section 10.2 of the Participation Agreement, such default shall continue unremedied for a period of thirty (30) 30 days after notice thereof from the Lessor or any Investor to representation or warranty by Lessee or any Guarantor, respectively, set forth in this Lease, the Lessee and (ii) Guarantee or in the case of any other such covenantOperative Agreement or in any document entered into in connection herewith or therewith or in any document, condition certificate or agreement, such default financial or other statement delivered in connection herewith or therewith shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor be false or inaccurate in any Investor to the Lessee material respect; or, if such default cannot reasonably be remedied within such thirty (30) day period, the Lessee shall have failed to remedy such default prior to the period ending on the 120th day following such notice to the Lessee or shall have failed to diligently pursue such remedy during such period;
(f) the Lessee or any Lessee Subsidiary shall a Credit Agreement Event of Default (other than those set forth in Sections 6.1 (a), (b), (d), (f), (g), (h), (i) fail to pay any principal or interest, regardless of amount, due in respect of any Indebtedness in a principal amount in excess of $20,000,000, beyond the period of grace, if any, provided in the agreement or instrument under which such Indebtedness was created, or (iip) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any such Indebtedness, or any other event of the Credit Agreement) shall occur or condition shall exist, beyond the period of grace, if any, provided in such agreement or instrument, if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such Indebtedness or a trustee on its or their behalf (with or without the giving of notice) to cause, such Indebtedness to become due prior to its stated maturity;have occurred and be continuing; or
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court event of competent jurisdiction seeking (i) relief in respect of default under the Lessee, or of a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000 or (iii) the winding up or liquidation of the Lessee; and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Lessee or any Lessee Subsidiary with assets having a gross book value in excess of $25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking Master Lease relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding Corporate Credit Agreement or the filing of any petition described in paragraph (g) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due or (vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more final judgments shall be entered by any court against the Lessee or any of the Lessee Subsidiaries for the payment of money in an aggregate amount in excess of $100,000,000 and such judgment or judgments shall not have been paid, covered by insurance, discharged or stayed for a period of sixty (60) days, or a warrant of attachment or execution or similar process shall have been issued or levied against property of the Lessee or any of the Subsidiaries to enforce any such judgment or judgments;
(j) an ERISA Event shall have occurred that, in the opinion of the Lessor, when taken together with all other such ERISA Events, could reasonably be expected to result in a Material Adverse Effect;
(k) a Change in Control shall occur;
(l) any insurance required to be maintained by the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect or any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Article VI or Section 11.1(a);
(m) any Operative Document to which the Lessee is a party or any Lien granted by the Lessee under any Operative Document shall, in whole or in material part, terminate, cease to be effective against, or (other than as expressly provided therein) cease to be the legal, valid, binding and enforceable obligation of the Lessee other than as permitted under, or pursuant to the terms of, or in connection with a transaction permitted by, any Operative Document;
(n) the Lessee shall directly or indirectly contest the effectiveness, validity, binding nature or enforceability of any Operative Document or any Lien granted under any Operative Document;
(o) any contract, permit or license in connection with any Property (including any in connection with the use, occupancy, zoning or operation of any Property) shall cease to be in full force and effect and such cessation, in the aggregate with any such cessation affecting any other Property, shall have had, or could reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the Fair Market Sales Value, condition, utility, remaining useful life or residual value of any Property; or
(p) any Casualty or Condemnation affecting any Property Other Equipment Leases shall have occurred and be continuing; then, in any such event, Lessor may, in addition to the aggregate Termination Base Amounts other rights and remedies provided for in this Section 17 and in Section 18.1, terminate this Lease by giving Lessee five (5) days notice of such termination, and this Lease shall terminate. Lessee shall, to the fullest extent permitted by law, pay as Supplemental Rent all Properties then unaffected costs and expenses incurred by or on behalf of Lessor, including fees and expenses of counsel, as a result of any Casualty or Condemnation shall be less than 30% Lease Event of the Aggregate Original Property CostDefault hereunder.
Appears in 1 contract
Sources: Lease (Hanover Compressor Co)
Lease Events of Default. The occurrence of any one or more of the following events (events, whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) , shall constitute a "Lease Event of Default":
(a) Lessee shall fail to make any representation payment of (i) Basic Rent and such failure shall continue for a period of three days or warranty made (ii) amounts payable pursuant to Section 13.1(a), Article XX, or deemed made by the Lessee in Sections 21.1(b), 22.3 or in connection with the execution and delivery of this Master Lease or the other Operative Documents or the transactions contemplated hereby or thereby (including any representation or warranty contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document) shall prove to have been false or misleading in any material respect 22.4 hereof when so made, deemed made or furnisheddue;
(b) any default Lessee or Guarantor shall be made in the fail to make payment of any Basic Rent, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount other amount payable hereunder or Lease Balance when Master Lease and as under any of the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) the Lessee shall fail to pay any Fee or Supplemental Rent (other than an amount referred to in paragraph (b) above) when due under the Operative Documents and such failure shall be continuing on continue for a period of five (5) days after the tenth earlier of notice to Lessee or Guarantor, as the case may be, of such failure or a Responsible Officer of Lessee or Guarantor knew or reasonably should have known of such failure;
(10thc) Business Day following the date on which the Lessee receives written notice that such amount is due and payableshall fail to maintain insurance as required by Section 11.1 above;
(d) any default Lessee shall be made fail to purchase the Premises in accordance with Section 20.2 below or Lessee shall fail to sell all of the due observance Premises on the Lease Expiration Date in accordance with and satisfaction of each of the terms, covenants, conditions and agreements set forth at Articles XXI and XXII hereof in connection with and following its exercise of the Sale Option, including each of Lessee's obligations at Sections 21.1 and 21.2 hereof;
(e) Lessee or performance of Guarantor shall fail timely to perform or observe any covenant, condition or agreement contained (not included in Section 10.1(a), 10.1(e), 10.2(a), 10.2(b), 10.2(cany other clause of this Article XVII) to be performed or 10.2(d) of the Participation Agreement and, in the case of any default observed by it hereunder or under Section 10.2(b) of the Participation Agreement, such default shall continue for thirty (30) days;
(e) any default shall be made in the due observance or performance of any covenant, condition or agreement contained herein or in any other Operative Document (other than those specified in paragraph (b), (c) or (d) above or paragraph (l) below) and (i) in the case of any such covenant, condition or agreement contained in clauses (a) through (i) of Section 10.1 of the Participation Agreement or contained in Section 10.2 of the Participation Agreement, such default failure shall continue unremedied for a period of thirty 30 days (30but in no event later than the Lease Expiration Date) days after the earlier to occur of (i) written notice thereof to Lessee from the Lessor any Lessor, Agent or any Investor to the Lessee and Participant or (ii) in the case date upon which a Responsible Officer of any other such covenant, condition Lessee knew or agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor or any Investor to the Lessee or, if such default cannot reasonably be remedied within such thirty (30) day period, the Lessee shall should have failed to remedy such default prior to the period ending on the 120th day following such notice to the Lessee or shall have failed to diligently pursue such remedy during such periodknown thereof;
(f) the Lessee or any Lessee Subsidiary shall (i) fail to pay any principal or interest, regardless occurrence of amount, due in respect a Del Monte Event of any Indebtedness in a principal amount in excess of $20,000,000, beyond the period of grace, if any, provided in the agreement or instrument under which such Indebtedness was created, or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any such Indebtedness, or any other event shall occur or condition shall exist, beyond the period of grace, if any, provided in such agreement or instrument, if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such Indebtedness or a trustee on its or their behalf (with or without the giving of notice) to cause, such Indebtedness to become due prior to its stated maturityDefault;
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Lessee, or of a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000 or (iii) the winding up or liquidation of the Lessee; and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Lessee or any Lessee Subsidiary with assets having a gross book value in excess of $25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking Master Lease relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding Any Operative Document or the filing of any petition described security interest and lien granted under this Lease (except in paragraph (g) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit in writing accordance with its inability or fail generally to pay its debts as they become due or (vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more final judgments shall be entered by any court against the Lessee or any of the Lessee Subsidiaries for the payment of money in an aggregate amount in excess of $100,000,000 and such judgment or judgments shall not have been paid, covered by insurance, discharged or stayed for a period of sixty (60) days, or a warrant of attachment or execution or similar process shall have been issued or levied against property of the Lessee or any of the Subsidiaries to enforce any such judgment or judgments;
(j) an ERISA Event shall have occurred that, in the opinion of the Lessor, when taken together with all other such ERISA Events, could reasonably be expected to result in a Material Adverse Effect;
(k) a Change in Control shall occur;
(l) any insurance required to be maintained by the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect or any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Article VI or Section 11.1(aterms);
(m) any Operative Document to which the Lessee is a party or any Lien granted by the Lessee under any Operative Document shall, in whole or in material part, terminateterminates, cease ceases to be effective against, or (other than as expressly provided therein) cease ceases to be the legal, valid, valid and binding and enforceable obligation of the Lessee other than as permitted underLessee, Guarantor, or pursuant to any of their Affiliates, as the terms case may be, on account of, or in connection with as a transaction permitted byresult of, directly or indirectly, any Operative Document;
(n) the Lessee shall act or omission of Lessee, Guarantor or any of their Affiliates, or Lessee, Guarantor or any of their Affiliates, directly or indirectly contest indirectly, contests in any manner in any court the effectiveness, validity, binding nature or enforceability thereof; or the security interest and lien securing Lessee's or Guarantor's obligations under the Operative Documents, in whole or in part, ceases to be a perfected first priority security interest and lien on account of, or as a result of, directly or indirectly, any action or omission of Lessee, Guarantor of any Operative Document or any Lien granted under any Operative Documentof their Affiliates;
(oh) any contract, permit or license in connection with any Property (including any in connection with the use, occupancy, zoning or operation A Construction Agency Agreement Event of any Property) shall cease to be in full force and effect and such cessation, in the aggregate with any such cessation affecting any other Property, Default shall have had, or could reasonably occurred and be expected continuing;
(i) An Event of Default shall occur under any Material Credit Agreement;
(j) Lessee fails to have, a Material Adverse Effect or a material adverse effect on provide and maintain the Fair Market Sales Value, condition, utility, remaining useful life or residual value Letter of any PropertyCredit as described in Section 5.2(k) of the Participation Agreement; or
(pk) Lessee fails to replace any Casualty or Condemnation affecting any Property shall have occurred and Non-Funding Participant within the aggregate Termination Base Amounts of all Properties then unaffected by any Casualty or Condemnation shall be less than 30% ninety (90) day period permitted to such replacement in Section 2.17 of the Aggregate Original Property Cost.Participation Agreement. -24-
Appears in 1 contract
Sources: Master Lease (Del Monte Foods Co)
Lease Events of Default. The occurrence of any one or more of the following events (whether such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall constitute a "Lease Event of Default":
(a) the Lessee shall fail to make payment of any Basic Rent upon the same becoming due and payable and such failure shall continue unremedied for a period of five (5) Business Days after Lessee's receipt of notice thereof from Administrative Agent or Agent Lessor; or the Lessee shall fail to make payment upon the same becoming due and payable of the Lease Balance, Purchase Option Price, Loan Balance or Lessor Balance, including, without limitation, amounts due pursuant to Sections 15.1, 15.2, 18.1, 18.2, 18.3 or 20.2 hereof; or
(b) the Lessee shall fail to make payment of any Supplemental Rent (other than as specified in clause (a) above) due and payable within five (5) Business Days after receipt of notice thereof from the Administrative Agent or the Agent Lessor; or
(c) the Lessee shall fail to maintain in effect insurance as required by Article XIII of this Master Lease; or
(d) the Lessee or the Guarantor shall fail to observe or perform in any material respect any term, covenant or condition applicable to it under Article XX of this Agreement; or
(e) the Lessee or the Guarantor shall fail to observe or perform in any material respect any term, covenant or condition applicable to it under any Operative Document to which it is party (other than those described in Section 16.1(a), (b), (c) or (d) hereof) and, in each such case, such failure shall have continued unremedied for thirty (30) days after written notice thereof has been given to the Lessee or the Guarantor by the Administrative Agent or Agent Lessor; or
(f) any representation or warranty made or deemed made by the Lessee in or in connection with the execution and delivery of this Master Lease or the other Guarantor in any Operative Documents Document to which it is a party or the transactions contemplated hereby or thereby (including any representation or warranty which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document) Document shall prove to have been incorrect, false or misleading in any material respect when so made, deemed on or as of the date made or furnished;deemed made; or
(bg) any default Default shall be made in the payment of the principal of or interest on any Basic RentIndebtedness of the Guarantor or any Restricted Subsidiary (other than Indebtedness under the Operative Documents) in either case aggregating more than $20,000,000, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount or Lease Balance as and when Master Lease and as the same shall become due and payablepayable by the lapse of time, whether at the due date thereof or at a date fixed by declaration, by call for prepayment thereof or redemption, by acceleration thereof or otherwise;
(c) the Lessee shall fail to pay any Fee or Supplemental Rent (other than an amount referred to in paragraph (b) above) when due under the Operative Documents , and such failure shall be continuing on the tenth (10th) Business Day following the date on which the Lessee receives written notice that such amount is due and payable;
(d) any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Section 10.1(a), 10.1(e), 10.2(a), 10.2(b), 10.2(c) or 10.2(d) of the Participation Agreement and, in the case of any default under Section 10.2(b) of the Participation Agreement, such default shall continue for thirty (30) days;
(e) beyond any default shall be made in the due observance or performance of any covenant, condition or agreement contained herein or in any other Operative Document (other than those specified in paragraph (b), (c) or (d) above or paragraph (l) below) and (i) in the case of any such covenant, condition or agreement contained in clauses (a) through (i) of Section 10.1 of the Participation Agreement or contained in Section 10.2 of the Participation Agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor grace or any Investor to the Lessee and (ii) in the case of any other such covenant, condition or agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor or any Investor to the Lessee or, if such default cannot reasonably be remedied within such thirty (30) day period, the Lessee shall have failed to remedy such default prior to the period ending on the 120th day following such notice to the Lessee or shall have failed to diligently pursue such remedy during such period;
(f) the Lessee or any Lessee Subsidiary shall (i) fail to pay any principal or interest, regardless of amount, due in respect of any Indebtedness in a principal amount in excess of $20,000,000, beyond the period of gracenotice, if any, provided in the agreement or instrument under which such Indebtedness was created, or allowed with respect thereto; or
(iih) fail to observe or perform any other term, covenant, condition or agreement contained Any event specified in any agreement note, agreement, indenture or instrument other document evidencing or governing any such Indebtedness, relating to Indebtedness of the Guarantor or any other event Restricted Subsidiary shall occur or condition shall exist, beyond the period of grace, if any, provided in such agreement or instrument, if the effect of any failure referred to in this clause (ii) such event is to cause, or (with the giving of any notice) to permit the holder or holders of such Indebtedness (or a trustee or agent on its behalf of such holder or their behalf (with or without the giving of noticeholders) to cause, $50,000,000 or more of such Indebtedness to become due due, or to be prepaid in full (whether by redemption, purchase, offer to purchase or otherwise), prior to its stated maturity;
maturity and any applicable period of grace or notice has lapsed with respect to such default; provided that no such event shall constitute an Event of Default hereunder if and so long as the Guarantor or the indebted Restricted Subsidiary (gas applicable) an involuntary proceeding shall be commenced contesting in good faith whether such event has occurred and the Guarantor and its Restricted Subsidiaries make no payments or an involuntary petition shall be filed concessions (whether in the form of collateral, increased interest or fees, more rapid amortization, more restrictive terms or otherwise) in consideration of a court resolution of competent jurisdiction seeking such contest; or
(i) relief in respect Final judgment or judgments for the payment of the Lessee, or of a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value money aggregating in excess of $25,000,00010,000,000 is or are outstanding against the Guarantor or any Restricted Subsidiary or against any Company Property of either and any one of such judgments has remained unpaid, under Title 11 unvacated, unbonded or unstayed by appeal or otherwise for a period of ninety (90) days from the date of its entry; or
(j) Any Person or two or more Persons acting in concert shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the United States CodeSecurities and Exchange Commission under the Securities Exchange Act of 1934, as now constituted or hereafter amended, amended or any other Federal successor regulation) of more than 50% of the voting stock of the Guarantor; or state bankruptcyduring any period of thirteen (13) consecutive calendar months (or, insolvencyif shorter, receivership or similar lawthe maximum period which would incorporate only one regularly scheduled annual meeting of the Guarantor), a majority of the Board of Directors of the Guarantor shall no longer be composed of individuals (i) who were members of said Board on the first day of such period, (ii) whose election or nomination to said Board was approved by individuals referred to in clause (i) above constituting at the appointment time of such election or nomination at least a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part majority of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000 said Board or (iii) whose election or nomination to said Board was approved by individuals referred to in clauses (i) and (ii) above constituting at the winding up time of such election or liquidation nomination at least a majority of said Board; or
(k) A custodian, receiver, liquidator or trustee of the Lessee; Guarantor or any Restricted Subsidiary, or of any of the Company Property of either, is appointed or takes possession and such proceeding appointment or petition shall continue undismissed possession remains uncontested or in effect for more than sixty (60) days days; or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Lessee Guarantor or any Lessee Restricted Subsidiary with assets having a gross book value in excess of $25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking Master Lease relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (g) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit in writing its inability or fail generally fails to pay its debts as they become due or (vii) take admits in writing its inability to pay its debts as they mature; or the Guarantor or any action for the purpose of effecting any of the foregoing;
(i) one Restricted Subsidiary is adjudicated bankrupt or more final judgments shall be entered by any court against the Lessee insolvent; or any of the Lessee Subsidiaries material property of either is sequestered by court order and the order remains in effect for the payment of money in an aggregate amount in excess of $100,000,000 and such judgment or judgments shall not have been paid, covered by insurance, discharged or stayed for a period of more than sixty (60) days, ; or a warrant petition is filed against the Guarantor or any Restricted Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of attachment debt, dissolution or execution liquidation law of any jurisdiction, whether now or similar process shall have been issued subsequently in effect, and is not stayed or levied dismissed within sixty (60) days after filing; or
(l) The Guarantor or any Restricted Subsidiary makes an assignment for the benefit of creditors or files a petition in voluntary bankruptcy or seeking relief under any provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or subsequently in effect; or consents to the filing of any petition against property it under any such law; or consents to the appointment of or taking possession by a custodian, receiver, trustee or liquidator of the Lessee Guarantor, any Restricted Subsidiary, or any of the Subsidiaries to enforce any such judgment or judgments;
(j) an ERISA Event shall have occurred that, in the opinion property of the Lessor, when taken together with all other such ERISA Events, could reasonably be expected to result in a Material Adverse Effect;
(k) a Change in Control shall occur;
(l) any insurance required to be maintained by the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect or any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Article VI or Section 11.1(a);
(m) any Operative Document to which the Lessee is a party or any Lien granted by the Lessee under any Operative Document shall, in whole or in material part, terminate, cease to be effective against, or (other than as expressly provided therein) cease to be the legal, valid, binding and enforceable obligation of the Lessee other than as permitted under, or pursuant to the terms of, or in connection with a transaction permitted by, any Operative Document;
(n) the Lessee shall directly or indirectly contest the effectiveness, validity, binding nature or enforceability of any Operative Document or any Lien granted under any Operative Document;
(o) any contract, permit or license in connection with any Property (including any in connection with the use, occupancy, zoning or operation of any Property) shall cease to be in full force and effect and such cessation, in the aggregate with any such cessation affecting any other Property, shall have had, or could reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the Fair Market Sales Value, condition, utility, remaining useful life or residual value of any Property; or
(p) any Casualty or Condemnation affecting any Property shall have occurred and the aggregate Termination Base Amounts of all Properties then unaffected by any Casualty or Condemnation shall be less than 30% of the Aggregate Original Property Costeither.
Appears in 1 contract
Sources: Master Lease, Deed of Trust and Security Agreement (Alumax Inc)
Lease Events of Default. The occurrence of any one or more of the following events shall constitute “Lease Events of Default” (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall constitute a "Lease Event of Default":Governmental Authority):
(a) any representation or warranty made or deemed made by the Lessee in or in connection with the execution and delivery of this Master Lease or the other Operative Documents or the transactions contemplated hereby or thereby (including any representation or warranty contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document) shall prove to have been false or misleading in any material respect when so made, deemed made or furnished;
(b) any default shall be made in the payment of any Basic Rent, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount or Lease Balance when Master Lease and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) the Lessee shall fail to pay make any Fee or Supplemental payment of (i) Base Rent (other than an amount referred to in paragraph (b) above) when due under the Operative Documents and such failure shall be continuing continue for five days or (ii) any other amount payable by the Lessee on the tenth Lease Term Expiration Date, Lease Balance or the Residual Value Guaranty Amount when due (10th) Business Day following the date on for which the Lessor will notify the Lessee receives written if such payment is not received when due, but the Lessor will have no liability to the Lessee if it fails to deliver such notice that and the Lessor’s failure to provide such amount notice shall not affect whether the same is due and payablea Lease Event of Default hereunder);
(db) the Lessee shall fail to make payment of any amount required hereunder, other than any amount described in Section 18.1(a), and such failure shall continue for a period of 10 days after notice of such failure to the Lessee from the Lessor or the Administrative Agent;
(c) an Insolvency Event with respect to the Guarantor, any Significant Subsidiary or the Lessee shall have occurred and be continuing;
(i) the Guarantor or the Lessee shall default shall be made in the due performance and observance or performance of any covenant, condition or agreement contained in Section 10.1(a), 10.1(e), 10.2(a), 10.2(b), 10.2(c) or 10.2(d) of the Participation Agreement and, in the case of any default its obligations under Section 10.2(b6.1(t) of the Participation Agreement, such default (ii) the Guarantor or any Significant Subsidiary shall continue for thirty (30) days;
(e) fail to perform, comply with or observe or shall otherwise breach any default shall be made in one or more of the due observance terms, obligations, covenants or performance of any covenant, condition or agreement agreements contained herein or in any other Operative Document of Sections 6.1(k)(i), 6.1(k)(ii), 6.1(k)(iii), 6.1(k)(v), 6.1(k)(vi), 6.1(l)(ii), 6.1(l)(iii), 6.1(l)(iv), 6.1(o), 6.1(q)(iii), or Sections 6.1(t) through (ee) (other than those specified in paragraph clauses (b), (ci) or (d) above or paragraph (l) below) and (i) in the case of any such covenant, condition or agreement contained in clauses (a) through (iii) of Section 10.1 6.1(cc)) of the Participation Agreement or contained in Section 10.2 of the Participation Agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor or any Investor to the Lessee and (ii) in the case of any other such covenant, condition or agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor or any Investor to the Lessee or, if such default cannot reasonably be remedied within such thirty (30) day period, the Lessee shall have failed to remedy such default prior to the period ending on the 120th day following such notice to the Lessee or shall have failed to diligently pursue such remedy during such period;
(f) the Lessee or any Lessee Subsidiary shall (i) fail to pay any principal or interest, regardless of amount, due in respect of any Indebtedness in a principal amount in excess of $20,000,000, beyond the period of grace, if any, provided in the agreement or instrument under which such Indebtedness was created, or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any such Indebtedness, or any other event shall occur or condition shall exist, beyond the period of grace, if any, provided in such agreement or instrument, if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such Indebtedness or a trustee on its or their behalf (with or without the giving of notice) to cause, such Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Lessee, or of a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000 or (iii) the winding up or liquidation of the Lessee; and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Lessee Guarantor or any Lessee Significant Subsidiary with assets having a gross book value in excess of $25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking Master Lease relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate mannerperform, comply with or observe or shall otherwise breach any proceeding or the filing of any petition described in paragraph (g) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due or (vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more final judgments shall be entered by any court against the Lessee or any of the Lessee Subsidiaries for the payment of money in an aggregate amount in excess of $100,000,000 and such judgment terms, covenants, obligations or judgments shall not have been paid, covered by insurance, discharged or stayed for a period of sixty (60) days, or a warrant of attachment or execution or similar process shall have been issued or levied against property of the Lessee or any of the Subsidiaries to enforce any such judgment or judgments;
(j) an ERISA Event shall have occurred that, in the opinion of the Lessor, when taken together with all other such ERISA Events, could reasonably be expected to result in a Material Adverse Effect;
(k) a Change in Control shall occur;
(l) any insurance required to be maintained by the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect or any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Article VI or Section 11.1(a);
(m) any Operative Document to which the Lessee is a party or any Lien granted by the Lessee under any Operative Document shall, in whole or in material part, terminate, cease to be effective against, or agreements (other than as expressly provided therein) cease to be the legal, valid, binding and enforceable obligation in respect of the Lessee other than as permitted under, or pursuant to the terms of, or in connection with a transaction permitted by, any Operative Document;
clause (n) the Lessee shall directly or indirectly contest the effectiveness, validity, binding nature or enforceability of any Operative Document or any Lien granted under any Operative Document;
(o) any contract, permit or license in connection with any Property (including any in connection with the use, occupancy, zoning or operation of any Property) shall cease to be in full force and effect and such cessation, in the aggregate with any such cessation affecting any other Property, shall have had, or could reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the Fair Market Sales Value, condition, utility, remaining useful life or residual value of any Property; or
(p) any Casualty or Condemnation affecting any Property shall have occurred and the aggregate Termination Base Amounts of all Properties then unaffected by any Casualty or Condemnation shall be less than 30% of the Aggregate Original Property Cost.ii)
Appears in 1 contract
Sources: Lease Agreement (Ross Stores Inc)
Lease Events of Default. The occurrence of any one or more of the following events (whether such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall constitute a "Lease Event of Default":
(a) any representation or warranty made or deemed made by the Lessee in shall fail to make payment of (i) any Basic Rent (other than a payment of Basic Rent due on the Expiration Date or in connection with Termination Date) within five (5) days after the execution same has become due and delivery of this Master Lease payable or (ii) Basic Rent, Purchase Option Price, Asset Termination Value or Residual Value Guarantee Amount or other amounts due on the Expiration Date or the other Operative Documents Termination Date, including, without limitation, amounts due pursuant to Sections 16.2, 16.3, 17.2(h), 20.1, 20.2, 20.3 or 22.1, after the transactions contemplated hereby or thereby (including any representation or warranty contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document) shall prove to have been false or misleading in any material respect when so made, deemed made or furnishedsame has become due and payable;
(b) any default the Lessee shall be made in the fail to make payment of any Basic Rent, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount or Lease Balance when Master Lease Supplemental Rent (other than Supplemental Rent referred to in clause (a) of this Section) due and as payable within five (5) days after the same shall has become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) the Lessee shall fail to pay any Fee or Supplemental Rent (other than an amount referred to in paragraph (b) above) when due under the Operative Documents and such failure shall be continuing on the tenth (10th) Business Day following the date on which the Lessee receives written notice that such amount is due and payablemaintain insurance as required by Article XIV of this Lease;
(d) the Lessee shall fail to observe or perform any default term, covenant or condition of the Lessee under this Lease, the Participation Agreement or any other Operative Agreement to which it is a party other than those described in Section 17.1(a), (b) or (c), hereof, or any representation or warranty set forth in this Lease or in any other Operative Document or in any document entered into in connection herewith or therewith or in any document, certificate or financial or other statement delivered in connection herewith or therewith shall be made false or inaccurate in the due observance any Material way, and, if such failure to perform or performance misrepresentation or breach of any covenant, condition warranty is other than with respect to a covenant or agreement contained in Section 10.1(a), 10.1(e), 10.2(a), 10.2(b), 10.2(c) or 10.2(d) of the Participation Agreement and, in the case of any default under Section 10.2(b10.1(b) of the Participation Agreement, such failure or misrepresentation or breach of warranty shall remain uncured for a period of 30 days after the earlier of (i) the date upon which the President, Chief Financial Officer or the project manager for the Property, if any, of the Lessee has actual knowledge thereof and (ii) the date upon which the Agent, the Lessor or any Participant gives notice to the Lessee thereof; provided, that if such failure to perform is not capable of being cured within such period but is capable of being cured within one hundred eighty (180) days after the occurrence of such default and the Lessee is proceeding diligently to cure such default, the Lessee shall be entitled to request an additional period (not to exceed one hundred eighty (180) days from the date of such default) to cure such default, which extended cure period may be granted by the Lessor and the Required Participants in their sole discretion;
(i) failure to pay when due Indebtedness in an aggregate principal amount of $2,000,000 or more of the Lessee or any Subsidiary or (ii) default other than a Change in Control under the Credit Agreement shall occur under one or more indentures, agreements or other instruments under which any Indebtedness of the Lessee or any Subsidiary in an aggregate principal amount of $2,000,000 or more may be issued or created and such default shall continue for thirty (30) days;
(e) any default shall be made in a period of time sufficient to permit the due observance holder or performance beneficiary of any covenant, condition such Indebtedness or agreement contained herein or in any other Operative Document (other than those specified in paragraph (b), (c) or (d) above or paragraph (l) below) and (i) in a trustee therefor to cause the case acceleration of the maturity of any such covenant, condition or agreement contained in clauses (a) through (i) of Section 10.1 of the Participation Agreement or contained in Section 10.2 of the Participation Agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor Indebtedness or any Investor to the Lessee and (ii) in the case of any other such covenantmandatory unscheduled prepayment, condition purchase or agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor or any Investor to the Lessee or, if such default cannot reasonably be remedied within such thirty (30) day period, the Lessee shall have failed to remedy such default prior to the period ending on the 120th day following such notice to the Lessee or shall have failed to diligently pursue such remedy during such periodfunding thereof;
(f) the Lessee or any Lessee Subsidiary shall (i) fail to pay any principal or interesthave entered involuntarily against it an order for relief under the United States Bankruptcy Code, regardless of amount, due in respect of any Indebtedness in a principal amount in excess of $20,000,000, beyond the period of grace, if any, provided in the agreement or instrument under which such Indebtedness was createdas amended, or any analogous action is taken under any other applicable law relating to bankruptcy or insolvency not dismissed or fully bonded within 90 days, (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any such Indebtednesspay, or any other event shall occur or condition shall existadmit in writing its inability to pay, beyond its debts generally as they become due, (iii) make an assignment for the period benefit of gracecreditors, if any(iv) apply for, provided in such agreement or instrumentseek, if the effect of any failure referred to in this clause (ii) is to causeconsent to, or to permit the holder or holders of such Indebtedness or a trustee on its or their behalf (with or without the giving of notice) to causeacquiesce in, such Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Lessee, or of a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, custodian, trustee, custodianexaminer, sequestrator, conservator liquidator or similar official for the Lessee it or for a any substantial part of its Property, (v) institute any proceeding seeking to have entered against it an order for relief under the property United States Bankruptcy Code, as amended, to adjudicate it insolvent, or assets seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (vi) take any corporate action (such as the passage by the Lessee's board of directors of a resolution) in furtherance of any matter described in parts (i)-(v) above, or (vii) fail to contest in good faith any appointment or proceeding described in Section 17.1(g) hereof;
(g) a custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for the Lessee or any material Subsidiary or any substantial part of any of their Property, or a proceeding described in Section 17.1(f)(v) shall be instituted against the Lessee Subsidiary with assets having gross book value in excess of $25,000,000 or (iii) the winding up or liquidation of the Lessee; any Subsidiary, and such appointment continues undischarged or such proceeding continues undismissed or petition shall continue undismissed unstayed for sixty a period of ninety (6090) days or an order or decree approving or ordering any of the foregoing shall be entereddays;
(h) the Lessee or any Lessee Subsidiary with assets having a gross book value in excess of $25,000,000 shall fail within forty-five (i45) voluntarily commence days to pay, bond over or otherwise discharge any proceeding judgment or file any petition seeking Master Lease relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (g) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due or (vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more final judgments shall be entered by any court against the Lessee or any of the Lessee Subsidiaries order for the payment of money in excess of $2,000,000, which is not stayed on appeal or otherwise being appropriately contested in good faith in a manner that stays execution thereon;
(i) the Lessee or any other member of the Controlled Group shall fail to pay when due an amount or amounts which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate amount Unfunded Vested Liabilities in excess of $100,000,000 2,000,000 (collectively, a "Material Plan") shall be filed under Title IV of ERISA by the Lessee or any Subsidiary or any other member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan against the Lessee or any other member of the Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA and such judgment or judgments proceeding shall not have been paid, covered by insurance, discharged or stayed for a period of sixty dismissed within thirty (6030) days, days thereafter; or a warrant condition shall exist by reason of attachment or execution or similar process shall have been issued or levied against property of which the Lessee or PBGC would be entitled to obtain a decree adjudicating that any of the Subsidiaries to enforce any such judgment or judgmentsMaterial Plan must be terminated;
(j) an ERISA Event a Change of Control shall have occurred that, in the opinion of the Lessor, when taken together with all other such ERISA Events, could reasonably be expected to result in a Material Adverse Effect;occur; or
(k) a Change in Control Guarantee Event of Default shall occurhave occurred and be continuing;
(l) any insurance required to a Construction Agency Agreement Event of Default shall have occurred and be maintained by the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect or any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Article VI or Section 11.1(a)continuing;
(m) any Operative Document to which the Lessee is a party shall have abandoned or constructively abandoned all or any Lien granted by the Lessee under any Operative Document shall, in whole or in material part, terminate, cease to be effective against, or (other than as expressly provided therein) cease to be the legal, valid, binding and enforceable obligation portion of the Lessee other than as permitted under, or pursuant to Property for a period of 30 consecutive days which results in the Property not being properly maintained in accordance with the terms of, or in connection with a transaction permitted by, any Operative Document;of this Lease; or
(n) the Lessee shall directly have elected to or indirectly contest be required to purchase the effectiveness, validity, binding nature Property pursuant to Sections 16.2 or enforceability of any Operative Document or any Lien granted under any Operative Document;
(o) any contract, permit or license in connection with any Property (including any in connection with the use, occupancy, zoning or operation of any Property) shall cease to be in full force and effect 16.3 hereof and such cessation, in the aggregate with any such cessation affecting any other Property, purchase shall not have had, or could reasonably be expected to have, a Material Adverse Effect or a material adverse effect been consummated on the Fair Market Sales Value, condition, utility, remaining useful life or residual value of any Property; or
(p) any Casualty or Condemnation affecting any Property shall have occurred and the aggregate Termination Base Amounts of all Properties then unaffected by any Casualty or Condemnation shall be less than 30% of the Aggregate Original Property CostDate pursuant to either such Section.
Appears in 1 contract
Sources: Master Lease (Transport Corporation of America Inc)
Lease Events of Default. The occurrence of If any one or more of the following events (whether such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall constitute each a "Lease Event of Default") shall occur:
(a) Lessee shall fail to make payment of (i) any representation Basic Rent within five (5) Business Days after the same has become due and payable or warranty made (ii) any Maximum Residual Guarantee Amount, Purchase Option Price or deemed made by Termination Value after the Lessee in or in connection with the execution same has become due and delivery of this Master Lease or the other Operative Documents or the transactions contemplated hereby or thereby (including any representation or warranty contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document) shall prove to have been false or misleading in any material respect when so made, deemed made or furnished;payable; or
(b) any default Lessee shall be made in the fail to make payment of any Basic Rent, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount or Lease Balance when Master Lease and as the same shall become Supplemental Rent due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;payable within five (5) Business Days after receipt of notice thereof; or
(c) the Lessee shall fail to pay any Fee or Supplemental Rent (other than an amount referred to in paragraph (b) above) when due under the Operative Documents and such failure shall be continuing on the tenth (10th) Business Day following the date on which the Lessee receives written notice that such amount is due and payable;maintain insurance as required by Section 14; or
(d) any Guarantors shall default shall be made in the due observance or performance of any covenant, condition or agreement contained in Section 10.1(a), 10.1(e), 10.2(a), 10.2(b), 10.2(c) or 10.2(d) Sections 10 and 11 of the Participation Agreement and, in the case of any default under Section 10.2(b) of the Participation Agreement, such default shall continue for thirty (30) days;Guarantee; or
(e) Lessee or any Guarantor shall default shall be made in the due observance or performance of any covenantterm, covenant or condition of Lessee or agreement contained herein of such Guarantor, respectively, under this Lease, the Participation Agreement, the Guarantee or in any other Operative Document Agreement to which it is a party (other than those specified set forth in paragraph Section 17.1(a), (b), (c) or (d) above or paragraph (l) belowhereof) and (i) in the case of any such covenant, condition or agreement contained in clauses (a) through (i) of Section 10.1 of the Participation Agreement or contained in Section 10.2 of the Participation Agreement, such default shall continue unremedied for a period of thirty (30) 30 days after notice thereof from the Lessor or any Investor to representation or warranty by Lessee or any Guarantor, respectively, set forth in this Lease, the Lessee and (ii) Guarantee or in the case of any other such covenantOperative Agreement or in any document entered into in connection herewith or therewith or in any document, condition certificate or agreement, such default financial or other statement delivered in connection herewith or therewith shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor be false or inaccurate in any Investor to the Lessee material respect; or, if such default cannot reasonably be remedied within such thirty (30) day period, the Lessee shall have failed to remedy such default prior to the period ending on the 120th day following such notice to the Lessee or shall have failed to diligently pursue such remedy during such period;
(f) the Lessee or any Lessee Subsidiary shall a Credit Agreement Event of Default (other than those set forth in Sections 6.1 (a), (b), (d), (f), (g), (h), (i) fail to pay any principal or interest, regardless of amount, due in respect of any Indebtedness in a principal amount in excess of $20,000,000, beyond the period of grace, if any, provided in the agreement or instrument under which such Indebtedness was created, or (iip) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any such Indebtedness, or any other event of the Credit Agreement) shall occur or condition shall exist, beyond the period of grace, if any, provided in such agreement or instrument, if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such Indebtedness or a trustee on its or their behalf (with or without the giving of notice) to cause, such Indebtedness to become due prior to its stated maturity;have occurred and be continuing; or
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court event of competent jurisdiction seeking (i) relief in respect of default under the Lessee, or of a substantial part of the property or assets of the Lessee Corporate Credit Agreement or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000 or (iii) the winding up or liquidation of the Lessee; and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Lessee or any Lessee Subsidiary with assets having a gross book value in excess of $25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking Master Equipment Lease relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (g) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Lessee or for a substantial part of the property or assets of the Lessee, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due or (vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more final judgments shall be entered by any court against the Lessee or any of the Lessee Subsidiaries for the payment of money in an aggregate amount in excess of $100,000,000 and such judgment or judgments shall not have been paid, covered by insurance, discharged or stayed for a period of sixty (60) days, or a warrant of attachment or execution or similar process shall have been issued or levied against property of the Lessee or any of the Subsidiaries to enforce any such judgment or judgments;
(j) an ERISA Event shall have occurred that, in the opinion of the Lessor, when taken together with all other such ERISA Events, could reasonably be expected to result in a Material Adverse Effect;
(k) a Change in Control shall occur;
(l) any insurance required to be maintained by the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect or any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Article VI or Section 11.1(a);
(m) any Operative Document to which the Lessee is a party or any Lien granted by the Lessee under any Operative Document shall, in whole or in material part, terminate, cease to be effective against, or (other than as expressly provided thereinthis Lease) cease to be the legal, valid, binding and enforceable obligation of the Lessee other than as permitted under, or pursuant to the terms of, or in connection with a transaction permitted by, any Operative Document;
(n) the Lessee shall directly or indirectly contest the effectiveness, validity, binding nature or enforceability of any Operative Document or any Lien granted under any Operative Document;
(o) any contract, permit or license in connection with any Property (including any in connection with the use, occupancy, zoning or operation of any Property) shall cease to be in full force and effect and such cessation, in the aggregate with any such cessation affecting any other Property, shall have had, or could reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the Fair Market Sales Value, condition, utility, remaining useful life or residual value of any Property; or
(p) any Casualty or Condemnation affecting any Property shall have occurred and be continuing; then, in any such event, Lessor may, in addition to the aggregate Termination Base Amounts other rights and remedies provided for in this Section 17 and in Section 18.1, terminate this Lease by giving Lessee five (5) days notice of such termination, and this Lease shall terminate. Lessee shall, to the fullest extent permitted by law, pay as Supplemental Rent all Properties then unaffected costs and expenses incurred by or on behalf of Lessor, including fees and expenses of counsel, as a result of any Casualty or Condemnation shall be less than 30% Lease Event of the Aggregate Original Property CostDefault hereunder.
Appears in 1 contract
Sources: Lease (Hanover Compression Inc)
Lease Events of Default. The occurrence of If any one (1) or more of the following events (whether such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall constitute each a "“Lease Event of Default"”) shall occur:
(ai) Except as otherwise provided in this Section 17.1(a), any payment of Basic Rent payable by Lessee shall not be paid when due, and, such payment shall be overdue for a period of three (3) Business Days, (ii) any payment payable by Lessee on the Expiration Date, including any payment described in Article XX or XXI, shall not be paid when due, (iii) any payment of the Termination Value or any payment of Basic Rent or Supplemental Rent due on the date of any such payment of the Termination Value shall not be paid when due, or (iv) Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent payable pursuant to clause (ii) or (iii) of this Section 17.1(a)) due and payable within five (5) Business Days after receipt by Lessee of notice from Agent demanding payment thereof (as any of the amounts pursuant to this Section 17.1(a) are due and payable, whether at maturity, by acceleration or otherwise);
(b) Any representation or warranty made of any Credit Party contained in any Operative Agreement, or deemed made by the Lessee in or in connection with the execution and delivery of this Master Lease or the other Operative Documents or the transactions contemplated hereby or thereby (including any representation or warranty contained in any certificate, document report furnished or financial delivered by any Credit Party on its own behalf or other statement furnished at any time under on Lessee’s behalf pursuant to the Operative Agreements to Agent or in connection with any Operative Document) shall prove to have been false Lessor is incorrect, incomplete or misleading in any material respect when so made, deemed made or furnished;
(b) any default shall be made in the payment of any Basic Rentreaffirmed, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount or Lease Balance when Master Lease and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwisecase may be;
(c) Any Credit Party shall default in the Lessee shall fail to pay observance or performance of any Fee or Supplemental Rent covenant contained in Article XIV of this Lease (other than an amount referred the requirement to in paragraph (bdeliver annual certificates), Sections 8.3A(c), 8.3A(f) above) when due under or 8.3B of the Operative Documents and such failure shall be continuing on the tenth (10th) Business Day following the date on which the Lessee receives written notice that such amount is due and payableParticipation Agreement;
(d) any Any Credit Party shall default shall be made in the due performance or observance or performance of any covenantterm, covenant (excepting those covenants described in Section 17.1(c)), condition or agreement contained in Section 10.1(a), 10.1(e), 10.2(a), 10.2(b), 10.2(c) on its part to be performed or 10.2(d) of the Participation Agreement and, in the case of any default observed hereunder or under Section 10.2(b) of the Participation Agreement, such default shall continue for thirty (30) days;
(e) any default shall be made in the due observance or performance of any covenant, condition or agreement contained herein or in any other Operative Document Agreement (and not constituting a Lease Event of Default under any other than those specified in paragraph (bclause of this Section 17.1), (c) or (d) above or paragraph (l) below) and (i) in the case of any such covenant, condition or agreement contained in clauses (a) through (i) of Section 10.1 of the Participation Agreement or contained in Section 10.2 of the Participation Agreement, such default is of a type that is subject to being cured and shall continue unremedied for a period of fifteen (15) Business Days after any Credit Party becomes aware of the occurrence thereof (such grace period to be applicable only in the event such default can be remedied by corrective action of the Credit Parties as determined by Lessor in its sole reasonable discretion);
(i) A breach, default or event of default shall occur at any time under the terms of the Revolving Credit Agreement or (ii) except as otherwise provided in the foregoing subsection (e)i), a breach, default or event of default shall occur at any time under the terms of any other agreement involving Indebtedness under which any Credit Party may be obligated as a borrower or guarantor in excess of Twenty-Five Million and 00/100 Dollars ($25,000,000.00) in the aggregate, and such breach, default or event of default consists of the failure to pay (beyond any period of grace permitted with respect thereto, whether waived or not) any Indebtedness when due (whether at stated maturity, by acceleration or otherwise) or if such breach or default permits or causes the acceleration of any Indebtedness (whether or not such right shall have been waived) or the termination of any commitment to lend;
(f) Any final judgments or orders for the payment of money in excess of Twenty-Five Million and 00/100 Dollars ($25,000,000.00) in the aggregate shall be entered against any Credit Party by a court having jurisdiction in the premises, which judgment is not satisfied, discharged, vacated, bonded or stayed pending appeal within a period of sixty (60) days from the date of entry;
(g) Any of the Operative Agreements shall cease to be legal, valid and binding agreements enforceable against the party executing the same or such party’s successors and assigns (as permitted under the Operative Agreements) in accordance with the respective terms thereof or shall in any way be terminated (except in accordance with its terms) or become or be declared ineffective or inoperative or shall in any way be challenged or contested by a Credit Party or cease to give or provide the remedies, powers or privileges intended to be created thereby;
(h) Any of the Credit Parties’ assets are attached, seized, levied upon or subjected to a writ or distress warrant; or such come within the possession of any receiver, receiver and manager, trustee, custodian, assignee for the benefit of creditors or other similar official and the same is not cured within sixty (60) days thereafter;
(i) A notice of Lien or assessment which is not a Permitted Lien is filed of record with respect to all or any part of Lessee’s interest in any of the Collateral by the United States, or any department, agency or instrumentality thereof, or by any state, county, municipal or other governmental agency, including the PBGC, or any Taxes or debts owing at any time or times hereafter to any one of these becomes payable and the same is not paid within thirty (30) days after notice thereof from the Lessor same becomes; or any Investor to the Lessee and (ii) except as otherwise provided in the case Section 17.1(i)(i), a notice of Lien or assessment in excess of Twenty-Five Million and 00/100 Dollars ($25,000,000.00) which is not a Revolving Credit Agreement Permitted Lien is filed of record with respect to all or any part of any of the Credit Parties’ assets by the United States, or any department, agency or instrumentality thereof, or by any state, county, municipal or other such covenantgovernmental agency, condition including the PBGC, or agreement, such default shall continue unremedied for a period any Taxes or debts owing at any time or times hereafter to any one of these becomes payable and the same is not paid within thirty (30) days after the same becomes payable;
(j) Any Credit Party ceases to be Solvent or admits in writing its inability to pay its debts as they mature; provided, that any Credit Party may dissolve in accordance with Section 8.3B(e) of the Participation Agreement;
(k) Any of the following occurs: (i) any Reportable Event which constitutes grounds for the termination of any Plan by the PBGC or the appointment of a trustee to administer or liquidate any Plan, shall have occurred and be continuing; (ii) proceedings shall have been instituted or other action taken to terminate any Plan, or a termination notice thereof from shall have been filed with respect to any Plan; (iii) a trustee shall be appointed to administer or liquidate any Plan; (iv) the PBGC shall give notice of its intent to institute proceedings to terminate any Plan or Plans or to appoint a trustee to administer or liquidate any Plan; and, in the case of the occurrence of (i), (ii), (iii), or (iv) above, Lessor determines in good faith that the amount of the Credit Parties’ liability is likely to exceed ten percent (10%) of its consolidated tangible net worth; (v) the Revolving Credit Agreement US Borrowers or any Investor other member of the ERISA Group shall fail to make any contributions when due to a Plan, Multiemployer Plan or Multiple Employer Plan; (vi) the Revolving Credit Agreement US Borrowers or any other member of the ERISA Group shall commit a contribution failure under Section 303(k)(1) of ERISA and is required to provide notice to the Lessee orPBGC under Section 303(k)(4) of ERISA; (vii) the Revolving Credit Agreement US Borrowers or any other member of the ERISA Group shall withdraw completely or partially from a Multiemployer Plan or a Multiple Employer Plan; (viii) the Revolving Credit Agreement US Borrowers or any other member of the ERISA Group shall withdraw (or shall be deemed under Section 4062(e) of ERISA to withdraw) from a Multiple Employer Plan or cease operations at a facility under the circumstances described in Section 4062(e) of ERISA; or (ix) any Applicable Law is adopted, if changed or interpreted by any Official Body with respect to or otherwise affecting one or more Plans, Multiemployer Plans, Multiple Employer Plans or Benefit Arrangements and, with respect to any of the events specified in (v), (vi), (vii), (viii) or (ix), the occurrence of which would be reasonably likely to result in a Material Adverse Effect;
(l) Any Credit Party ceases to conduct its business as contemplated, except as expressly permitted under Section 8.3B(e) or 8.3B(f) of the Participation Agreement, or any Credit Party is enjoined, restrained or in any way prevented by court order from conducting all or any material part of its business and such default caninjunction, restraint or other preventive order is not reasonably be remedied dismissed within such thirty (30) day period, days after the Lessee shall have failed to remedy such default prior to the period ending on the 120th day following such notice to the Lessee or shall have failed to diligently pursue such remedy during such periodentry thereof;
(f) the Lessee or any Lessee Subsidiary shall (i) fail to pay any principal Any person or interest, regardless group of amount, due in respect persons (within the meaning of any Indebtedness in a principal amount in excess Section 13(d) or 14(a) of $20,000,000, beyond the period Exchange Act) shall have acquired beneficial ownership of grace, if any, provided in (within the agreement meaning of Rule 13d-3 promulgated by the SEC under said Act) thirty-three and one-third of one percent (33.33%) or instrument under which such Indebtedness was createdmore of the voting capital stock of the Parent, or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any such Indebtedness, or any other event shall occur or condition shall exist, beyond the within a period of gracetwelve (12) consecutive calendar months, if any, provided in such agreement or instrument, if individuals who were directors of the effect of any failure referred to in this clause (ii) is to cause, or to permit Parent on the holder or holders first day of such Indebtedness period, together with any directors whose election by such board of directors or whose nomination for election by the shareholders was approved by a trustee on its or their behalf (with or without vote of the giving majority of notice) the directors then in office shall cease to cause, such Indebtedness to become due prior to its stated maturity;constitute a majority of the board of directors of the Parent.
(gn) an involuntary A proceeding shall be commenced or an involuntary petition shall be filed have been instituted in a court of competent having jurisdiction in the premises seeking (i) a decree or order for relief in respect of the Lessee, or of a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value Credit Party in excess of $25,000,000, an involuntary case under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state applicable bankruptcy, insolvency, receivership reorganization or other similar lawLaw now or hereafter in effect, (ii) or for the appointment of a receiver, trusteeliquidator, assignee, custodian, trustee, sequestrator, conservator (or similar official official) of any Credit Party for the Lessee or for a any substantial part of its property, or for the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000 or (iii) the winding winding-up or liquidation of the Lessee; its affairs, and such proceeding shall remain undismissed or petition shall continue undismissed unstayed and in effect for a period of sixty (60) consecutive days or an such court shall enter a decree or order or decree approving or ordering granting any of the foregoing shall be enteredrelief sought in such proceeding;
(ho) the Lessee or Any Credit Party shall commence a voluntary case under any Lessee Subsidiary with assets having a gross book value in excess of $25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking Master Lease relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state applicable bankruptcy, insolvency, receivership reorganization or other similar lawlaw now or hereafter in effect, (ii) shall consent to the institution ofentry of an order for relief in an involuntary case under any such law, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (g) above, (iii) apply for or shall consent to the appointment of or taking possession by a receiver, trusteeliquidator, assignee, custodian, trustee, sequestrator, conservator (or other similar official for the Lessee official) of itself or for a any substantial part of the its property or assets of the Lessee, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) shall make a general assignment for the benefit of creditors, (vi) become unable, admit in writing its inability or shall fail generally to pay its debts as they become due due, or (vii) shall take any action for the purpose in furtherance of effecting any of the foregoing;
(ip) one Lessee shall fail to deliver a certificate when required pursuant to Section 14.3(a) within five (5) Business Days after receipt of notice from Lessor that such certificate is due under the terms hereof or more final judgments to maintain insurance to the extent required by Article XIV;
(q) Lessee shall be entered by any court against elect the Lessee or any of the Lessee Subsidiaries for the payment of money in an aggregate amount in excess of $100,000,000 Sale Option and such judgment or judgments shall not have been paid, covered complied with each of its obligations pursuant to the Operative Agreements by insurance, discharged or stayed for a period of sixty (60) days, or a warrant of attachment or execution or similar process shall have been issued or levied against property of the Lessee or any of the Subsidiaries to enforce any such judgment or judgmentsExpiration Date;
(jr) an ERISA An Agency Agreement Event of Default shall have occurred that, in the opinion of the Lessor, when taken together with all other such ERISA Events, could reasonably and be expected to result in a Material Adverse Effectcontinuing;
(ks) a Change in Control shall occur;
(l) any insurance required to be maintained by the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect or any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Article VI or Section 11.1(a);
(m) any Any Operative Document to which the Lessee is a party or any Lien granted by the Lessee under any Operative Document shall, in whole or in material part, terminate, cease to be effective against, or (other than as expressly provided therein) cease to be the legal, valid, binding and enforceable obligation of the Lessee other than as permitted under, or pursuant to the terms of, or in connection with a transaction permitted by, any Operative Document;
(n) the Lessee shall directly or indirectly contest the effectiveness, validity, binding nature or enforceability of any Operative Document or any Lien granted under any Operative Document;
(o) any contract, permit or license in connection with any Property (including any in connection with the use, occupancy, zoning or operation of any Property) Agreement shall cease to be in full force and effect effect;
(t) The guaranty given by the Guarantors under the Participation Agreement shall cease to be in full force and effect, or any Guarantor or any Person acting by or on behalf of any Guarantor shall deny or disaffirm its obligations under such cessationguaranty, or any Guarantor shall default in the aggregate with any such cessation affecting any other Property, shall have had, due performance or could reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the Fair Market Sales Value, condition, utility, remaining useful life or residual value observance of any Propertyterm, covenant or agreement on its part to be performed or observed pursuant to such guaranty; or
(pu) Any Operative Agreement shall for any Casualty reason cease to create a valid and perfected first priority Lien (subject to Permitted Liens) on, or Condemnation affecting security interest in, any Property shall have occurred of the Collateral purported to be covered thereby, in each case other than in accordance with the express terms hereof or thereof. then, in any such event, Lessor may, in addition to the rights and remedies provided in the Agency Agreement regarding any Agency Agreement Event of Default and the aggregate Termination Base Amounts other rights and remedies provided for in this Article XVII and in Section 18.1, terminate this Lease by giving Lessee five (5) days’ notice of all Properties then unaffected by any Casualty or Condemnation such termination (provided, notwithstanding the foregoing, this Lease shall be less than 30% deemed to be automatically terminated without the giving of notice upon the Aggregate Original Property Costoccurrence of a Lease Event of Default under Sections 17.1(n) or (o)), and this Lease shall terminate, and all rights of Lessee under this Lease shall cease. Lessee shall, to the fullest extent permitted by law, pay all costs and expenses incurred by or on behalf of Lessor or any other Financing Party, including fees and expenses of counsel (with such payments to be characterized as Supplemental Rent), as a result of any Lease Event of Default hereunder.
Appears in 1 contract
Lease Events of Default. The occurrence of any one or more of the following events (whether such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall constitute a "Lease Event of Default":
(a) any representation or warranty made or deemed made by the Lessee in or in connection with the execution and delivery of this Master Lease or the other Operative Documents or the transactions contemplated hereby or thereby (including any representation or warranty contained in any certificate, document or financial or other statement furnished at any time under or in connection with any Operative Document) shall prove to have been false or misleading in any material respect when so made, deemed made or furnished;
(b) any default shall be made in the payment of any Basic Rent, Property Cost, Aggregate Property Cost, Termination Price, Termination Base Amount or Lease Balance when Master Lease and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(ci) the Lessee shall fail to pay make payment of any Fee or Supplemental Basic Rent (other than an amount referred to in paragraph (b) above) when upon the same becoming due under the Operative Documents and payable and such failure shall be continuing on the tenth (10th) Business Day following the date on which the Lessee receives written notice that such amount is due and payable;
(d) any default shall be made in the due observance or performance of any covenant, condition or agreement contained in Section 10.1(a), 10.1(e), 10.2(a), 10.2(b), 10.2(c) or 10.2(d) of the Participation Agreement and, in the case of any default under Section 10.2(b) of the Participation Agreement, such default shall continue for thirty (30) days;
(e) any default shall be made in the due observance or performance of any covenant, condition or agreement contained herein or in any other Operative Document (other than those specified in paragraph (b), (c) or (d) above or paragraph (l) below) and (i) in the case of any such covenant, condition or agreement contained in clauses (a) through (i) of Section 10.1 of the Participation Agreement or contained in Section 10.2 of the Participation Agreement, such default shall continue unremedied for a period of thirty three (303) days after notice thereof from the Lessor or any Investor to the Lessee and (ii) in the case of any other such covenant, condition or agreement, such default shall continue unremedied for a period of thirty (30) days after notice thereof from the Lessor or any Investor to the Lessee or, if such default cannot reasonably be remedied within such thirty (30) day period, the Lessee shall have failed to remedy such default prior to the period ending on the 120th day following such notice to the Lessee or shall have failed to diligently pursue such remedy during such period;
(f) the Lessee or any Lessee Subsidiary shall (i) fail to pay any principal or interest, regardless of amount, due in respect of any Indebtedness in a principal amount in excess of $20,000,000, beyond the period of grace, if any, provided in the agreement or instrument under which such Indebtedness was created, or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any such Indebtedness, or any other event shall occur or condition shall exist, beyond the period of grace, if any, provided in such agreement or instrument, if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such Indebtedness or a trustee on its or their behalf (with or without the giving of notice) to cause, such Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Lessee, or of a substantial part of the property or assets of the Lessee or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000, 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 lawBusiness Days, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Lessee shall fail to make payment upon the Lessee or for a substantial part same becoming due and payable of the property Lease Balance, Purchase Option Price, Property Balance, Property Cost or assets Maximum Recourse Amount or any amounts payable in conjunction with the payment of any of the Lessee foregoing including, without limitation, amounts due pursuant to Sections 15.1, 15.2, 18.1, 18.2, 18.3 or any Lessee Subsidiary with assets having gross book value in excess of $25,000,000 20.2 hereof or (iii) the winding up or liquidation Lessee Guarantor shall fail to make payment pursuant to Section 10.2 of the LesseeParticipation Agreement upon the same becoming due and payable; and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;or
(hb) the Lessee or any Lessee Subsidiary with assets having a gross book value in excess of $25,000,000 shall (i) voluntarily commence any proceeding or file any petition seeking Master Lease relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal or state bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing make payment of any petition described Supplemental Rent (other than as specified in paragraph clause (ga) above, ) when due and payable within five (iii5) apply for or consent days after receipt of notice thereof from the party to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the whom Lessee or for a substantial part of the property or assets of the Lessee, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit in writing its inability or fail generally is obligated to pay its debts as they become due or (vii) take any action for the purpose of effecting any of the foregoing;such Supplemental Rent; or
(i) one or more final judgments shall be entered by any court against the Lessee or any of the Lessee Subsidiaries for the payment of money in an aggregate amount in excess of $100,000,000 and such judgment or judgments shall not have been paid, covered by insurance, discharged or stayed for a period of sixty (60) days, or a warrant of attachment or execution or similar process shall have been issued or levied against property of the Lessee or any of the Subsidiaries to enforce any such judgment or judgments;
(j) an ERISA Event shall have occurred that, in the opinion of the Lessor, when taken together with all other such ERISA Events, could reasonably be expected to result in a Material Adverse Effect;
(k) a Change in Control shall occur;
(lc) any insurance required to be maintained by the Lessee pursuant to Article XIII of this Master Lease shall fail to be in effect or any default shall be made the Lessee defaults in the due observance or performance of any covenantcompliance with Sections 10.1(i), condition or agreement contained in Article VI or Section 11.1(a(j);
, (mk) any Operative Document to which the Lessee is a party or any Lien granted by the Lessee under any Operative Document shall, in whole or in material part, terminate, cease to be effective against, or (other than as expressly provided thereinl) cease to be the legal, valid, binding and enforceable obligation of the Lessee other than as permitted under, or pursuant to the terms of, or in connection with a transaction permitted by, any Operative Document;
(n) the Lessee shall directly or indirectly contest the effectiveness, validity, binding nature or enforceability of any Operative Document or any Lien granted under any Operative Document;
(o) any contract, permit or license in connection with any Property (including any in connection with the use, occupancy, zoning or operation of any Property) shall cease to be in full force and effect and such cessation, in the aggregate with any such cessation affecting any other Property, shall have had, or could reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the Fair Market Sales Value, condition, utility, remaining useful life or residual value of any PropertyParticipation Agreement; or
(p) any Casualty or Condemnation affecting any Property shall have occurred and the aggregate Termination Base Amounts of all Properties then unaffected by any Casualty or Condemnation shall be less than 30% of the Aggregate Original Property Cost.
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Sources: Master Lease and Deed of Trust (Sabre Holdings Corp)