Permitted Encumbrances. Section 8.3.1 Subject to Section 7.3.2 hereof, Tenant shall, at its own cost and expense, fully observe, perform and comply with all Permitted Encumbrances as the same apply to or bind Lessor or any of the Leased Properties. Subject to Section 7.3.2 hereof, Tenant shall not cause, or permit its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires or assigns (whether or not permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination of any Permitted Encumbrance applicable to or binding upon Lessor or any of the Leased Properties. Notwithstanding anything to the contrary contained in Section 16.1 or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of Default shall be deemed to have occurred under this Lease on account of Tenant’s breach of this Section 8.3.1, when, but only if, (a) Tenant’s breach of this Section 8.3.1 also results in a breach or default of an obligation under a Permitted Encumbrance, (b) such Permitted Encumbrance breach or default is not cured by Tenant on or prior to the expiration of the cure period, if any, applicable to such breach or default by the terms of the instrument creating such Permitted Encumbrance (or such longer cure period as may be expressly authorized by an order of a court of competent jurisdiction), and (c) on account of such Permitted Encumbrance breach or default, a real property interest, or a covenant, condition, restriction, license or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees that, in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s cure thereof, Lessor agrees to accept Tenant’s cure thereof, or reimbursement of Lessor’s costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s indemnification rights under Section 24.1 below. Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.
Appears in 10 contracts
Sources: Master Lease Agreement (Kindred Healthcare, Inc), Master Lease Agreement (Kindred Healthcare, Inc), Master Lease Agreement (Kindred Healthcare, Inc)
Permitted Encumbrances. “Permitted Encumbrances” shall mean: (i) immaterial defects in title that are of the nature customarily accepted by prudent purchasers of oil and gas properties, that do not adversely impair the use, operation or value of any portion of the Properties and that do not reduce any Seller’s net revenue interest set forth on Exhibit B or increase any Seller’s working interest above that amount set forth on Exhibit B; (ii) Liens for labor, services, materials or supplies furnished to the Properties which are not delinquent and which will be paid or discharged in the ordinary course of business; (iii) Liens for taxes or assessments not yet due and not delinquent; (iv) Lessor’s royalties, overriding royalties, division orders and similar burdens if the net cumulative effect of such burdens does not operate to reduce the net revenue interest from that set forth on Exhibit A or increase any Seller’s working interest above that amount set forth on Exhibit B; (v) unitization and pooling declarations and agreements and any operating agreements, insofar as such contracts and agreements do not operate to increase the working interest or decrease the net revenue interest of any Seller from that stipulated on Exhibit B attached hereto; (vi) preferential rights to purchase and required third party consents to assignments and similar agreements with respect to which, prior to Closing, (A) waivers or consents are obtained from the appropriate parties as further described in Section 8.3.1 Subject 7.3(e), or (B) the appropriate time period for asserting such rights has expired without an exercise of such rights; (vii) all rights to Section 7.3.2 hereofconsent by, Tenant shallrequired notices to, at its own cost filings with, or other actions by Governmental Entities in connection with the sale or conveyance of oil and expense, fully observe, perform and comply with all Permitted Encumbrances as gas leases or interests therein if the same apply are customarily obtained subsequent to such sale or conveyance; (viii) rights reserved to or bind Lessor vested in any Governmental Entity to control or regulate any of the Leased Properties. Subject to Section 7.3.2 hereofProperties in any manner, Tenant shall not causeand all applicable laws, or permit its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires or assigns (whether or not permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination rules and orders of any Permitted Encumbrance applicable to or binding upon Lessor or any of the Leased Properties. Notwithstanding anything to the contrary contained in Section 16.1 or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of Default shall be deemed to have occurred under this Lease on account of Tenant’s breach of this Section 8.3.1, when, but only if, Governmental Entity; (a) Tenant’s breach of this Section 8.3.1 also results in a breach or default of an obligation under a Permitted Encumbrance, (bix) such Permitted Encumbrance breach or default is not cured by Tenant on or prior to the expiration of the cure period, if any, applicable to such breach or default by the terms of the instrument creating such Permitted Encumbrance (or such longer cure period Title Defects as may be expressly authorized by an order of a court of competent jurisdiction), Buyer shall have waived; and (cx) on account of such Permitted Encumbrance breach or default, a real property interest, or a covenant, condition, restriction, license or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or a Leased Property is terminated or otherwise lost or Liens released at material risk of being terminated or otherwise lost. Lessor agrees that, in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s cure thereof, Lessor agrees to accept Tenant’s cure thereof, or reimbursement of Lessor’s costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s indemnification rights under Section 24.1 belowClosing.
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.
Appears in 3 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Diamondback Energy, Inc.), Purchase and Sale Agreement (Diamondback Energy, Inc.)
Permitted Encumbrances. Section 8.3.1 Subject to Section 7.3.2 hereof, Tenant shall, at its own cost and expense, fully observe, perform and comply with all Permitted Encumbrances as the same apply to or bind Lessor or any of the Leased Properties. Subject to Section 7.3.2 hereof, Tenant shall not cause, or permit its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires or assigns (whether or not permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination of any Permitted Encumbrance applicable to or binding upon Lessor or any of the Leased Properties. Notwithstanding anything to the contrary contained in Section 16.1 or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of Default shall be deemed to have occurred under this Lease on account of Tenant’s breach of this Section 8.3.1, when, but only if, (a) Tenant’s breach of this Section 8.3.1 also results in a breach or default of an obligation under a Permitted Encumbrance, (b) such Permitted Encumbrance breach or default is not cured by Tenant on or prior to the expiration of the cure period, if any, applicable to such breach or default by the terms of the instrument creating such Permitted Encumbrance (or such longer cure period as may be expressly authorized by an order of a court of competent jurisdiction), and (c) on account of such Permitted Encumbrance breach or default, a real property interest, or a covenant, condition, restriction, license or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees that, in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s cure thereof, Lessor agrees to accept Tenant’s cure thereof, or reimbursement of Lessor’s costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s indemnification rights under Section 24.1 below.
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.
Appears in 3 contracts
Sources: Master Lease Agreement (Ventas Inc), Master Lease Agreement (Kindred Healthcare, Inc), Master Lease Agreement (Kindred Healthcare Inc)
Permitted Encumbrances. Section 8.3.1 Subject to Section 7.3.2 hereof, Tenant shall, at its ------------- own cost and expense, fully observe, perform and comply with all Permitted Encumbrances as the same apply to or bind Lessor or any of the Leased Properties. Subject to Section 7.3.2 hereof, Tenant shall not cause, or permit ------------- its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires or assigns (whether or not permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination of any Permitted Encumbrance applicable to or binding upon Lessor or any of the Leased Properties. Notwithstanding anything to the contrary contained in Section 16.1 ------------ or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of ------------- Default shall be deemed to have occurred under this Lease on account of Tenant’s 's breach of this Section 8.3.1, when, but only if, (a) Tenant’s 's breach of this Section ------------- Section
8.3.1 also results in a breach or default of an obligation under a ------------- Permitted Encumbrance, (b) such Permitted Encumbrance breach or default is not cured by Tenant on or prior to the expiration of the cure period, if any, applicable to such breach or default by the terms of the instrument creating such Permitted Encumbrance (or such longer cure period as may be expressly authorized by an order of a court of competent jurisdiction), and (c) on account of such Permitted Encumbrance breach or default, a real property interest, or a covenant, condition, restriction, license or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees that, in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure ------------- shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s 's reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, -------- ------- notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s 's cure thereof, Lessor agrees to accept Tenant’s 's cure thereof, or reimbursement of Lessor’s 's costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s 's indemnification ----------- rights under Section 24.1 below.. ------------
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, ---------------- if the same is not cured, the condition referenced in Section 8.3.1(c) above ---------------- would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this ------------ Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or ---------------- whether the cure period referenced in Section 8.3.1(b) above has expired or is ---------------- likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default -------- ------- referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.
Appears in 2 contracts
Sources: Master Lease Agreement (Kindred Healthcare Inc), Master Lease Agreement (Kindred Healthcare Inc)
Permitted Encumbrances. Section 8.3.1 Subject to Section 7.3.2 hereof, Tenant shall, at its ------------- own cost and expense, fully observe, perform and comply with all Permitted Encumbrances as the same apply to or bind Lessor or any of the Leased Properties. Subject to Section 7.3.2 hereof, Tenant shall not cause, or permit ------------- its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires or assigns (whether or not permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination of any Permitted Encumbrance applicable to or binding upon Lessor or any of the Leased Properties. Notwithstanding anything to the contrary contained in Section 16.1 ------------ or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of ------------- Default shall be deemed to have occurred under this Lease on account of Tenant’s 's breach of this Section 8.3.1, when, but only if, (a) Tenant’s 's breach of this Section ------------- Section
8.3.1 also results in a breach or default of an obligation under a ------------- Permitted Encumbrance, (b) such Permitted Encumbrance breach or default is not cured by Tenant on or prior to the expiration of the cure period, if any, applicable to such breach or default by the terms of the instrument creating such Permitted Encumbrance (or such longer cure period as may be expressly authorized by an order of a court of competent jurisdiction), and (c) on account of such Permitted Encumbrance breach or default, a real property interest, or a covenant, condition, restriction, license or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees that, in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure ------------- shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s 's reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, notwithstanding the foregoing, even after the -------- ------- occurrence of such an Event of Default by Tenant and/or Lessor’s 's cure thereof, Lessor agrees to accept Tenant’s 's cure thereof, or reimbursement of Lessor’s 's costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or ----------- impair Lessor’s 's indemnification rights under Section 24.1 below.. ------------
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, ---------------- if the same is not cured, the condition referenced in Section 8.3.1(c) above ---------------- would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this ------------ Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or ---------------- whether the cure period referenced in Section 8.3.1(b) above has expired or is ---------------- likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default -------- ------- referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.
Appears in 2 contracts
Sources: Master Lease Agreement (Ventas Inc), Master Lease Agreement (Kindred Healthcare Inc)
Permitted Encumbrances. (c) any Lien on any asset of the Company or any Subsidiary existing on the Effective Date and set forth on Schedule 6.02; provided that (i) such Lien shall not apply to any other asset of the Company or any Subsidiary other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 8.3.1 Subject to Section 7.3.2 hereof6.01 and (B) proceeds and products thereof and (ii) such Lien shall secure only those obligations that it secures on the Effective Date and extensions, Tenant shallrenewals, at its own cost replacements and expense, fully observe, perform and comply with all Permitted Encumbrances refinancings thereof so long as the same apply principal amount of such extensions, renewals, replacements and refinancings does not exceed the principal amount of the obligations being extended, renewed, replaced or refinanced or, in the case of any such obligations constituting Indebtedness, that are permitted under Section 6.01(b) as Refinancing Indebtedness in respect thereof; (d) any Lien existing on any asset prior to or bind Lessor the acquisition thereof by the Company or any Subsidiary or existing on any asset of the Leased Properties. Subject to Section 7.3.2 hereof, Tenant shall any Person that becomes a Subsidiary (or of any Person not cause, previously a Subsidiary that is merged or permit its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires consolidated with or assigns (whether or not into a Subsidiary in a transaction permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination of any Permitted Encumbrance applicable to or binding upon Lessor or any of after the Leased Properties. Notwithstanding anything to the contrary contained in Section 16.1 or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of Default shall be deemed to have occurred under this Lease on account of Tenant’s breach of this Section 8.3.1, when, but only if, (a) Tenant’s breach of this Section 8.3.1 also results in a breach or default of an obligation under a Permitted Encumbrance, (b) such Permitted Encumbrance breach or default is not cured by Tenant on or Effective Date prior to the expiration time such Person becomes a Subsidiary (or is so merged or consolidated); provided that (i) such Lien is not created in contemplation of the cure period, if any, applicable to or in connection with such breach acquisition or default by the terms of the instrument creating such Permitted Encumbrance Person becoming a Subsidiary (or such longer cure period as may merger or consolidation), (ii) such Lien shall not apply to any other asset of the Company or any Subsidiary (other than (A) the proceeds or products of such assets, (B) after-acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be expressly authorized by an order of a court of competent jurisdiction)permitted to apply to any property to which such requirement would not have applied but for such acquisition, and (cC) in the case of any such merger or consolidation, the assets of any Subsidiary without significant assets that was formed solely for the purpose of effecting such acquisition) and (iii) such Lien shall secure only those obligations that it secures on account the date of such Permitted Encumbrance breach acquisition or defaultthe date such Person becomes a Subsidiary (or is so merged or consolidated) and extensions, a real property interestrenewals, replacements and refinancings thereof so long as the principal amount of such extensions, renewals and replacements does not exceed the principal amount of the obligations being extended, renewed or a covenant, condition, restriction, license or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees thatreplaced or, in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure case of any such Event of Default, provided, however, that, notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s cure thereof, Lessor agrees to accept Tenant’s cure thereof, or reimbursement of Lessor’s costs and expenses to effect such cure, provided, and on the conditionobligations constituting Indebtedness, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s indemnification rights are permitted under Section 24.1 below.
6.01(g) as Refinancing Indebtedness in respect thereof; (e) Liens on fixed or capital assets acquired, constructed or improved (including any such assets made the subject of a Finance Lease Obligation incurred) by the Company or any Subsidiary; provided that (i) such Liens secure Indebtedness incurred to finance such acquisition, construction or improvement and permitted by clause (f)(i) of Section 8.3.2 If 6.01 or any Refinancing Indebtedness in respect thereof permitted by clause (af)(ii) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs6.01, and (bii) on account thereof, if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this Lease, Lessor may, but such Liens shall not be obligated toapply to any other assets (except for replacements, in its discretion additions and regardless of whether Tenant is proceeding accessions to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2assets) of the aforesaid stated cure period has elapsed. If Lessor so Company or any Subsidiary, other than the proceeds and products of such fixed or capital assets; provided that individual financings of equipment provided by one lender may be cross collateralized to attempt other financings of equipment provided by such lender; (f) in connection with the sale or transfer of any Equity Interests or other assets in a transaction permitted under Section 6.05, customary rights and restrictions contained in agreements relating to cure any such Permitted Encumbrance breach sale or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for transfer pending the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.completion thereof; 106
Appears in 1 contract
Permitted Encumbrances. Section 8.3.1 Subject to Section 7.3.2 hereof, Tenant shall, at (i) There are no Encumbrances (other than Permitted Encumbrances) on the Real Property. Each Seller owns its own cost and expense, fully observe, perform and comply with all Permitted Encumbrances as the same apply to or bind Lessor or any respective portion of the Leased Properties. Subject to Section 7.3.2 hereof, Tenant shall not cause, or permit Real Property as set forth on the Title Commitment and will convey its fee simple interest in its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires or assigns (whether or not permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination of any Permitted Encumbrance applicable to or binding upon Lessor or any portion of the Leased Properties. Notwithstanding anything to the contrary contained in Section 16.1 or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of Default shall be deemed to have occurred under this Lease on account of Tenant’s breach of this Section 8.3.1, when, but only if, (a) Tenant’s breach of this Section 8.3.1 also results in a breach or default of an obligation under a Permitted Encumbrance, (b) such Permitted Encumbrance breach or default is not cured by Tenant on or prior to the expiration of the cure periodReal Property and all buildings and improvements, if any, located thereon to Buyer subject only to the Permitted Encumbrances applicable to such breach or default by the terms portion of the instrument creating such Permitted Encumbrance (or such longer cure period as may be expressly authorized by an order of a court of competent jurisdiction), and (c) on account of such Permitted Encumbrance breach or default, a real property interest, or a covenant, condition, restriction, license or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees that, in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of DefaultReal Property, provided, however, thatthat for purposes of the foregoing representations and warranties only, notwithstanding Seller makes no representation or warranty with respect to the foregoingexistence of those matters shown on Schedule 1.1F but not also shown as Schedule B Exceptions.
(ii) Each Seller agrees that title to its respective portion of the Real Property shall not be altered between the date of this Agreement and the Closing. Unless Seller obtains Buyer’s prior written consent (which consent may be withheld or given in Buyer’s sole discretion), even after each Seller shall not place or permit to be placed against its respective portion of the occurrence Real Property (or any portion thereof) any additional liens, encumbrances, easements or other matters during the term of such an Event this Agreement. Notwithstanding any contrary provision of Default this Agreement, in the event of a breach by Tenant and/or Lessor’s cure thereof, Lessor agrees to accept Tenant’s cure thereof, or reimbursement Seller of Lessor’s costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in terms of this Section 8.3 5.10, Buyer shall limit or impair Lessor’s indemnification have in addition to any rights under Section 24.1 below.
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or remedies provided elsewhere in this Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cureAgreement, the Permitted Encumbrance breach or default referenced in Section 8.3.1(aadditional right (but not the obligation) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, by the express terms of specifically enforce this covenant against the applicable Permitted EncumbranceSeller and to cause such additional lien, a stated period encumbrance, easement or other matter to cure be abandoned, extinguished or otherwise removed from the sametitle to the Real Property (at Seller’s sole cost and expense, Lessor agrees not and with such cost and expense to commence to cure such breach or default unless and until one-half (1/2) of be deducted from the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for Final Purchase Price payable by Buyer at the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or defaultClosing).
Appears in 1 contract
Permitted Encumbrances. Section 8.3.1 Subject As to Section 7.3.2 hereofeach Property, Tenant shallthe following items shall be deemed acceptable to the Purchaser Parties and all such items shall constitute "Permitted Encumbrances" hereunder to which the Purchaser Parties may not object:
(i) all unpaid personal property, at its own cost real estate and expenseany excise Taxes related thereto, fully observeand all water, perform sewer, utility, trash and comply with other similar charges, in each case that are (A) not yet due and payable and delinquent as of the applicable Closing Date but are or may become or give rise to a Lien on all Permitted Encumbrances as the same apply to or bind Lessor or any portion of such Property, or (B) being contested in good faith by the owner of such Property and have been paid in full (it being understood that such items may be subject to apportionment or adjustment at the applicable Closing as provided herein);
(ii) undetermined or inchoate liens, rights of distress and charges incidental to construction, maintenance or current operations that have not at such time been filed or exercised or that relate to obligations not due or payable;
(iii) in respect of Properties located in Canada, reservations, limitations, provisos and conditions expressed in any original grant from the Crown or other grants of real or immovable property, or interests therein, and/or any statutory limitations to title set out by statute;
(iv) the rights of the Leased Properties. Subject Tenants as tenants only without any purchase options or rights of refusal pursuant to Leases or otherwise relating to the premises leased by a Tenant, other than any Ground Leases, now in effect or which may be in effect on the applicable Closing Date;
(v) the terms and conditions of the Ground Leases and any matter affecting the fee estate of lessor under a Ground Lease under a Ground Lease only and such matter does not encumber the leasehold estate;
(vi) except for any Mandatory Removal Exception, any Material Title Exceptions deemed to be a Permitted Encumbrance pursuant to this Section 7.3.2 hereof2.3 or otherwise waived by the Purchaser Parties as provided in this Section 2.3;
(vii) other than Mandatory Removal Exceptions, Tenant all easements, rights of way, encumbrances, covenants, conditions, restrictions that appear of record (other than Mandatory Removal Exceptions), provided that no such matter materially impairs the current use or value of such Property or the operation of the business conducted thereon in any material manner;
(viii) all matters created or caused by or on behalf of, or with the written consent of, the Purchaser Parties or any Affiliate thereof;
(ix) all Laws, including all environmental, building and zoning restrictions affecting such Property or the ownership, use or operation thereof adopted by any Governmental Entity having jurisdiction over such Property or the ownership, use or operation thereof, and all amendments or -- \\DC - 088650/000238 - 6521921 v16 additions thereto now in effect or which may be in force and effect after the date hereof with respect to such Property, except to the extent that the Property is not in material compliance with any Laws relating to zoning; the Parties hereby acknowledge and agree that the failure of any Property to have any required certificate of occupancy or other permit or license (other than on account of a failure of such Property to be in material compliance with a Law relating to zoning) shall not cause, be treated as a title or permit its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires or assigns (whether or not permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination of any Permitted Encumbrance applicable to or binding upon Lessor or any of the Leased Properties. Notwithstanding anything to the contrary contained in Section 16.1 or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of Default survey matter and shall be deemed to have occurred under this Lease on account of Tenant’s breach of this Section 8.3.1, when, but only if, (a) Tenant’s breach of this Section 8.3.1 also results in a breach or default of an obligation under be a Permitted Encumbrance;
(x) any Liens of mechanics, (b) such Permitted Encumbrance breach material or default is not cured by Tenant materialmen, contractors, consultants, or other workmen or suppliers for labor and/or material provided to or for the benefit of the Property for or on or prior behalf of any Tenant, to the expiration extent such Liens encumber such Tenant's leasehold interest only, are fully reimbursable by a Tenant, and are Liens for which a Tenant has an obligation to remove under a Lease (each, a "Tenant Lien");
(xi) Liens securing obligations for which a credit in an amount sufficient to cause such Lien to be removed from or endorsed over in the Title Policy, together with the fees associated with such removal or endorsement, will be given to the Purchaser Parties at the Closing or that are reflected on the Estimated Initial Closing Statement or Estimated Deferred Closing Statement;
(xii) with respect to Commercial Loan Properties, the terms and conditions set forth in any of the cure periodPurchased Commercial Loans, if anyincluding any intercreditor agreements, applicable subordination agreements, participation agreements, cross collateralization agreements and similar agreements related thereto, and the rights of the Obligors set forth therein;
(xiii) Liens securing Existing Loans relating to such breach Property; and
(xiv) all other documents and matters listed or default by the terms of the instrument creating such Permitted Encumbrance (or such longer cure period as may be expressly authorized by an order of a court of competent jurisdiction), referred to on Schedules 3.6 and (c) on account of such Permitted Encumbrance breach or default, a real property interest, or a covenant, condition, restriction, license or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees that, in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s cure thereof, Lessor agrees to accept Tenant’s cure thereof, or reimbursement of Lessor’s costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s indemnification rights under Section 24.1 below3.19.
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.
Appears in 1 contract
Sources: Purchase and Sale Agreement (General Electric Capital Corp)
Permitted Encumbrances. Section 8.3.1 Subject To the extent that Purchaser has not received the Title Commitment and/or survey or to Section 7.3.2 hereofthe extent issues are marked "open" on Schedule 4.4 for each parcel of Owned Real Property as of the date of this Agreement, Tenant shalltitle to each parcel of such Owned Real Property will be good and marketable, at its own cost free and expenseclear of any security interest, fully observemortgage, perform pledge, lien, charge, encumbrance, right of way, easement or adverse claim of any kind or nature except (i) liens for current taxes not yet due and comply payable; and (ii) those encumbrances, rights of way, easements or adverse claims (collectively, the "Restrictions") of a type and kind consistent with all the Permitted Encumbrances described on Schedule 4.4 as the same apply to or bind Lessor or any of the Leased Properties. Subject to Section 7.3.2 hereof, Tenant shall not cause, or permit its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires or assigns (whether or not permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination date of any Permitted Encumbrance applicable to or binding upon Lessor or any of the Leased Properties. Notwithstanding anything to the contrary contained in Section 16.1 or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of Default Agreement which Restrictions shall be deemed added to have occurred under this Lease on account of Tenant’s breach of this Section 8.3.1, when, but only if, (a) Tenant’s breach of this Section 8.3.1 also results in a breach or default of an obligation under a Permitted Encumbrance, (b) such Permitted Encumbrance breach or default is not cured by Tenant Schedule 4.4 on or prior to the expiration of the cure periodClosing Date; provided, if anyhowever, applicable should Purchaser and Seller be unable to such breach or default by the terms of the instrument creating such Permitted Encumbrance (or such longer cure period as may agree whether a Restriction shall be expressly authorized by an order of a court of competent jurisdiction), and (c) on account of such Permitted Encumbrance breach or default, a real property interest, or a covenant, condition, restriction, license or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees that, in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor then such Restriction shall promptly forward be deemed a copy thereof to TenantPermitted Encumbrance and Seller shall indemnify and hold a Purchaser Indemnified Party (as hereinafter defined) harmless from, against and in respect of any and all loss, liability, and expense (including without limitation, reasonable expenses and attorney's fees) suffered or incurred by a Purchaser Indemnified Party by reason of such Restriction (the "Section 6.12 Losses"). Tenant agrees thatNotwithstanding the foregoing, if Lessor, at its option, elects to cure an Event of Default by Tenant Seller shall have no liability under this Section 8.3.1, 6.12 to indemnify a Purchaser Indemnified Party for any Section 6.12 Losses related to an Acquired Facility until the aggregate costs for such cure shall not excuse Tenant from, or be deemed a cure of, Section 6.12 Losses related to such Event of Default, nor shall Tenant’s reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s cure thereof, Lessor agrees to accept Tenant’s cure thereof, or reimbursement of Lessor’s costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s indemnification rights under Section 24.1 belowAcquired Facility exceed $5,000.
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.
Appears in 1 contract
Sources: Asset Purchase Agreement (National Service Industries Inc)
Permitted Encumbrances. Section 8.3.1 Subject As used herein, “Permitted Encumbrances” means (i) lessor’s royalties, overriding royalties, reversionary interests, rights or options to Section 7.3.2 hereofparticipate, Tenant shall, at its own cost and expense, fully observe, perform and comply with all Permitted Encumbrances as the same apply any similar or other burdens applicable to or bind Lessor or any of the Leased Properties. Subject Leases, if the effect of such burdens does not operate to Section 7.3.2 hereofreduce Buyer’s working interest in each of the Leases and Buyer’s net revenue interest in each of the Leases to less than shown on Exhibit “A” AND Exhibit “A1” attached; (ii) any and all federal, Tenant shall not causestate, or permit its respective agentsand local regulatory laws, employees, contractors, invitees, subtenants, licensees, concessionaires or assigns (whether or not permitted hereunder) orders and rules to cause, whether by act or omission, any breach of, default under or termination of any Permitted Encumbrance applicable to or binding upon Lessor or which any of the Leased Properties. Notwithstanding anything Leases is presently subject provided such laws do not prohibit Seller from being able to acquire drilling permits and access permits to enable Seller access to the contrary contained in Section 16.1 or elsewhere in this Lease but subject Leases; (iii) preferential rights to Section 7.3.2 hereofpurchase and required consents and similar agreements with respect to which, an Event of Default shall be deemed Seller has shown to have occurred under this Lease on account of TenantBuyer’s breach of this Section 8.3.1, when, but only ifreasonable satisfaction, (a) Tenantwaivers or consents have been obtained prior to the Closing Date from the appropriate parties or (b) required notice has been given to the holder of the right and the appropriate time period for asserting the right has expired prior to the Closing Date without an exercise of the right; (iv) encumbrances relating to the Leases that secure payments to mechanics and material men or that secure payment of taxes or assessments that are, in either case, not yet
(a) reduce Buyer’s breach working interest in each of this Section 8.3.1 also results the Leases or reduce Buyer’s net revenue interest in a breach or default each of an obligation under a Permitted Encumbrancethe Leases to less than that shown on Exhibit “A” AND Exhibit “A1”, proportionately reduced to the oil and gas ownership interest purported to be covered by each Lease, (b) such Permitted Encumbrance breach or default is not cured reduce the net mineral acres covered by Tenant on or prior to the expiration any of the cure periodLeases as set forth on attached Exhibit “A” AND Exhibit “A1”, if any, applicable to such breach or default by the terms of the instrument creating such Permitted Encumbrance (or such longer cure period as may be expressly authorized by an order of a court of competent jurisdiction), and (c) on account materially interfere with or detract from the ownership, operation, value or use of the Leases. Such permissible defects under item (ix) include, without limitation, (A) those described by an attorney’s title opinion as advisory only and (B) defects that have clearly been cured by possession under applicable statutes of limitation, defects in the early chain of title such Permitted Encumbrance breach as failure to recite marital status in documents, omission of heirship or defaultsuccession proceedings, a real property interestlack of survey and failure to record releases of liens, production payments or a covenant, condition, restriction, license mortgages that have expired of their own terms or which through the passage of time or by statute are clearly no longer enforceable or other beneficial right, created under such Permitted Encumbrance defects that either as a practical matter have not resulted or are not likely to result in claims that will materially adversely affect Seller’s title based upon customary oil and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees that, gas title practice in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, notwithstanding jurisdiction where the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s cure thereof, Lessor agrees to accept Tenant’s cure thereof, or reimbursement of Lessor’s costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s indemnification rights under Section 24.1 below.
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, lands covered by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or defaultLeases are located.
Appears in 1 contract
Permitted Encumbrances. Section 8.3.1 Subject to Section 7.3.2 hereof, Tenant shall, at its ------------- own cost and expense, fully observe, perform and comply with all Permitted Encumbrances as the same apply to or bind Lessor or any of the Leased Properties. Subject to Section 7.3.2 hereof, Tenant shall not cause, or permit ------------- its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires or assigns (whether or not permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination of any Permitted Encumbrance applicable to or binding upon Lessor or any of the Leased Properties. Notwithstanding anything to the contrary contained in Section 16.1 ------------ or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of ------------- Default shall be deemed to have occurred under this Lease on account of Tenant’s 's breach of this Section 8.3.1, when, but only if, (a) Tenant’s 's breach of this Section ------------- Section
8.3.1 also results in a breach or default of an obligation under a ------------- Permitted Encumbrance, (b) such Permitted Encumbrance breach or default is not cured by Tenant on or prior to the expiration of the cure period, if any, applicable to such breach or default by the terms of the instrument creating such Permitted Encumbrance (or such longer cure period as may be expressly authorized by an order of a court of competent jurisdiction), and (c) on account of such Permitted Encumbrance breach or default, a real property interest, or a covenant, condition, restriction, license or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees that, in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure shall not excuse Tenant from, or be ------------- deemed a cure of, such Event of Default, nor shall Tenant’s 's reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, -------- ------- notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s 's cure thereof, Lessor agrees to accept Tenant’s 's cure thereof, or reimbursement of Lessor’s 's costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s 's indemnification ----------- rights under Section 24.1 below.. ------------
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, ---------------- if the same is not cured, the condition referenced in Section 8.3.1(c) above ---------------- would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this ------------ Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or ---------------- whether the cure period referenced in Section 8.3.1(b) above has expired or is ---------------- likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default -------- ------- referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.
Appears in 1 contract
Permitted Encumbrances. Section 8.3.1 Subject to Section 7.3.2 hereof, Tenant shall, at its own cost and expense, fully observe, perform and comply with all Permitted Encumbrances as (i) Liens on any property or asset of the same apply to or bind Lessor Borrower or any of its Subsidiaries existing on the Leased Properties. Subject to Section 7.3.2 hereof, Tenant date hereof and set forth on Schedule 7.2; provided that such Liens shall not causeapply to any other property or asset of the Borrower or any Subsidiary;
(j) purchase money Liens upon or in any fixed or capital assets to secure the purchase price or the cost of construction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, construction or permit its respective agentsimprovement of such fixed or capital assets (including Liens securing any Capital Lease Obligations); provided that (i) any such Lien secures Indebtedness permitted by Section 7.1(c), employees(ii) any such Lien attaches to such asset concurrently or within 90 days after the acquisition or the completion of the construction or improvements thereof (or, contractorsin the case of an extension, inviteesrefinancing, subtenantsreplacement or renewal, licenseesat the time of such extension, concessionaires refinancing, replacement or assigns renewal), (whether iii) any such Lien does not extend to any other asset other than accessions and reasonable extensions thereof, and (iv) the Indebtedness secured thereby does not exceed the cost (including interest costs) of acquiring, constructing or not permitted hereunderimproving such fixed or capital assets;
(k) to cause, whether by act or omission, any breach of, default under or termination Lien (x) existing on any asset of any Permitted Encumbrance applicable to Person at the time such Person becomes a Subsidiary of the Borrower, (y) existing on any asset of any Person at the time such Person is merged with or binding upon Lessor into the Borrower or any of the Leased Properties. Notwithstanding anything its Subsidiaries, or (z) existing on any asset prior to the contrary contained acquisition thereof by the Borrower or any of its Subsidiaries; provided that (i) any such Lien was not created in the contemplation of any of the foregoing and (ii) any such Lien secures only those obligations which it secures on the date that such Person becomes a Subsidiary or the date of such merger or the date of such acquisition;
(l) Liens on the assets of, and Capital Stock in, any Excluded Subsidiary; provided that (i) to the extent any such Lien secures Indebtedness, any such Lien secures only Indebtedness permitted by Section 16.1 7.1(h), (ii) no such Lien is prohibited by any other Contractual Obligation of the Borrower or elsewhere in this Lease but subject any of its Subsidiaries and (iii) at the time of and immediately after giving effect to any such Lien (which for Liens on the assets of, and Capital Stock in, any Excluded Subsidiary that is designated pursuant to Section 7.3.2 hereof5.18(a)(iv)(z) shall be the date of such designation), an (A) no Default or Event of Default shall exist and (B) the Borrower and its Subsidiaries shall be deemed in pro forma compliance with Sections 6.1 and 6.2 as of the most recently ended Test Period, calculated as if all Indebtedness secured by such Lien had been incurred as of the first day of the relevant period for testing compliance and all Acquisitions permitted hereunder since the end of such Test Period had been consummated as of the first day of the relevant period for testing compliance;
(m) [Reserved];
(n) extensions, renewals, or replacements of any Lien referred to have occurred under this Lease on account of Tenant’s breach of this Section 8.3.1, when, but only if, (a) Tenant’s breach of this Section 8.3.1 also results in a breach or default of an obligation under a Permitted Encumbrance, subsections (b) such Permitted Encumbrance breach or default through (g) of this Section; provided that the principal amount of the Indebtedness secured thereby is not cured by Tenant on increased (other than in an amount not to exceed unpaid interest and fees, and expenses incurred in connection therewith) and that any such extension, renewal or prior replacement is limited to the expiration assets originally encumbered thereby; and
(o) to the extent required by the landlord under a lease of Real Estate entered into by a Subsidiary Loan Party with a landlord that is not (x) an Affiliate of the cure periodBorrower or (y) a PropCo Landlord, if any, applicable to such breach or default by Liens on the terms assets of the instrument creating such Permitted Encumbrance (a Subsidiary Loan Party or such longer cure period as may Subsidiary Loan Party’s Subsidiaries (but not, for the avoidance of doubt, on the Capital Stock of such Subsidiary Loan Party or such Subsidiary Loan Party’s Subsidiaries) to secure the obligations of such Subsidiary Loan Party under such lease; provided that such Subsidiary Loan Party and its Subsidiaries shall not be expressly authorized by an order of a court of competent jurisdiction), and (c) required to become Excluded Subsidiaries on account of such Permitted Encumbrance breach lease and shall instead be Subsidiary Loan Parties to the extent any such lien granted to or default, in favor of such landlord is subject to a real property interest, or a covenant, condition, restriction, license or other beneficial right, created customary intercreditor agreement between the Administrative Agent and the landlord under such Permitted Encumbrance lease that provides that any such Liens of such landlord on accounts receivable (and benefiting Lessor proceeds thereof, books and records related thereto and accounts into which the same are deposited) of such Subsidiary Loan Party or a Leased Property is terminated or otherwise lost or at material risk such Subsidiary Loan Party’s Subsidiary (collectively, “Accounts Collateral”) shall be junior to the Lien of being terminated or otherwise lost. Lessor agrees the Administrative Agent on such Accounts Collateral; provided further that, in to the event Lessor receives extent any written notice such intercreditor agreement provides that the Liens of default from a party such landlord on Accounts Collateral that are initially junior to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof the Lien of the Administrative Agent on such Accounts Collateral are to Tenant. Tenant agrees that, if Lessor, at its option, elects become senior to cure an Event the Lien of Default by Tenant under this Section 8.3.1the Administrative Agent on such Accounts Collateral, such cure shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, notwithstanding the foregoing, even after the occurrence Liens of such an Event of Default by Tenant and/or Lessor’s cure thereof, Lessor agrees landlord on Accounts Collateral shall cease to accept Tenant’s cure thereof, or reimbursement of Lessor’s costs and expenses be permitted pursuant to effect such cure, provided, and this clause (i) on the condition, date that Lessor has not, is 75 days prior thereto, terminated this Lease as it affects to the Leased Property date provided in such intercreditor agreement whereupon the Liens of such landlord on Accounts Collateral will cease to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s indemnification rights under Section 24.1 below.
Section 8.3.2 If (a) a Permitted Encumbrance breach or default be junior to the Liens of the nature described in Section 8.3.1(a) above occurs, and (b) Administrative Agent on account thereof, if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or defaultAccounts Collateral.
Appears in 1 contract
Sources: Credit Agreement (Ensign Group, Inc)
Permitted Encumbrances. Section 8.3.1 Subject “Permitted Encumbrances” means: (i) Burdens (payable or in suspense) if the net cumulative effect of such Burdens does not operate to Section 7.3.2 hereofreduce the NRI of Seller in any C/N Tract below the NRI shown on Exhibit A for such C/N Tract; (ii) all rights to consent by, Tenant shallrequired notices to, at its own cost filings with, or other actions by any national, state or local government or any subdivision, agency, court, commission, department, board, bureau, regulatory authority or other division or instrumentality thereof (a “Governmental Entity”) in connection with the sale or conveyance of oil and expense, fully observe, perform and comply with gas leases or interests therein that are customarily obtained subsequent to the sale or conveyance; (iii) all Permitted Encumbrances as the same apply rights of any Governmental Entity to control or bind Lessor or regulate any of the Leased Properties. Subject Assets in any manner; (iv) rights of reassignment upon the surrender or expiration of any Lease; (v) liens or security interests created under joint operating agreements or by operation of Law in respect of obligations that are not yet due; (vi) liens for Taxes or assessments not yet due; (vii) any mortgage or deed of trust granted by the lessor or affecting only the lessor’s interest in a Lease, unless (1) such mortgage or deed of trust predates the applicable Lease, (2) has not been subordinated to Section 7.3.2 hereofsuch Lease, Tenant shall not causeand (3) an event of default thereunder by the lessor has occurred and is continuing; (viii) any lien, security interest, or permit its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires encumbrance affecting the Assets that is discharged at or assigns prior to Closing; (whether ix) all Title Defects that Buyer has waived or not permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination of any Permitted Encumbrance applicable to or binding upon Lessor or any of the Leased Properties. Notwithstanding anything to the contrary contained in Section 16.1 or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of Default shall be is deemed to have occurred under this Lease on account waived; and (x) the Leases, Contracts, Surface Agreements, and all other liens, encumbrances, agreements, instruments, obligations, defects, and irregularities affecting the Assets that (in each case) do not individually or in the aggregate (1) materially impair the use, ownership or operation of Tenant’s breach of this Section 8.3.1, when, but only ifthe Assets (as currently owned and operated), (a2) Tenant’s breach reduce the NRI of this Section 8.3.1 also results Seller in a breach or default of an obligation under a Permitted Encumbrance, (b) any C/N Tract below the NRI for such Permitted Encumbrance breach or default is not cured by Tenant C/N Tract as set forth on or prior to the expiration of the cure period, if any, applicable to such breach or default by the terms of the instrument creating such Permitted Encumbrance (or such longer cure period as may be expressly authorized by an order of a court of competent jurisdiction), and (c) on account of such Permitted Encumbrance breach or default, a real property interestExhibit A, or a covenant, condition, restriction, license or other beneficial right, created under (3) reduce the Net Acres of Seller in any C/N Tract below the Net Acres for such Permitted Encumbrance and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees thatC/N Tract as set forth on Exhibit A, in the event Lessor receives any written notice case of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s cure thereof, Lessor agrees to accept Tenant’s cure thereof, or reimbursement of Lessor’s costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s indemnification rights under Section 24.1 below.
Section 8.3.2 If subsections (a2) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof3), if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything insofar and only insofar as to the contrary contained in Section 17.1 below or elsewhere in this Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or defaultC/N Formations.
Appears in 1 contract
Permitted Encumbrances. Section 8.3.1 Subject to Section 7.3.2 hereof, Tenant shall, at its own cost and expense, fully observe, perform and comply with all Permitted Encumbrances as the same apply to or bind Lessor or any of the Leased Properties. Subject to Section 7.3.2 hereof, Tenant shall not cause, or permit its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires or assigns (whether or not permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination of any Permitted Encumbrance applicable to or binding upon Lessor or any of the Leased Properties. Notwithstanding anything to the contrary contained in Section 16.1 or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of Default shall be deemed to have occurred under this Lease on account of Tenant’s 's breach of this Section 8.3.1, when, but only if, (a) Tenant’s 's breach of this Section 8.3.1 also results in a breach or default of an obligation under a Permitted Encumbrance, (b) such Permitted Encumbrance breach or default is not cured by Tenant on or prior to the expiration of the cure period, if any, applicable to such breach or default by the terms of the instrument creating such Permitted Encumbrance (or such longer cure period as may be expressly authorized by an order of a court of competent jurisdiction), and (c) on account of such Permitted Encumbrance breach or default, a real property interest, or a covenant, condition, restriction, license or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees that, in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s 's reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s 's cure thereof, Lessor agrees to accept Tenant’s 's cure thereof, or reimbursement of Lessor’s 's costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s 's indemnification rights under Section 24.1 below.
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.8.3.1
Appears in 1 contract
Sources: Master Lease Agreement (Ventas Inc)
Permitted Encumbrances. Section 8.3.1 Subject to Section 7.3.2 hereof, Tenant shall, at its own cost and expense, fully observe, perform and comply with all Permitted Encumbrances as the same apply to or bind Lessor or any of the Leased PropertiesProperty. Subject to Section 7.3.2 hereof, Tenant shall not cause, or permit its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires or assigns (whether or not permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination of any Permitted Encumbrance applicable to or binding upon Lessor or any of the Leased PropertiesProperty. Notwithstanding anything to the contrary contained in Section 16.1 or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of Default shall be deemed to have occurred under this Lease on account of Tenant’s 's breach of this Section 8.3.1, when, but only if, (a) Tenant’s 's breach of this Section 8.3.1 also results in a breach or default of an obligation under a Permitted Encumbrance, (b) such Permitted Encumbrance breach or default is not cured by Tenant on or prior to the expiration of the cure period, if any, applicable to such breach or default by the terms of the instrument creating such Permitted Encumbrance (or such longer cure period as may be expressly authorized by an order of a court of competent jurisdiction), and (c) on account of such Permitted Encumbrance breach or default, a real property interest, or a covenant, condition, restriction, license or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees that, in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s 's reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s 's cure thereof, Lessor agrees to accept Tenant’s 's cure thereof, or reimbursement of Lessor’s 's costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such the Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s 's indemnification rights under Section 24.1 below.
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.
Appears in 1 contract
Sources: Operations Transfer Agreement (Kindred Healthcare Inc)
Permitted Encumbrances. Section 8.3.1 Subject As to Section 7.3.2 hereofeach Property, Tenant shallthe following items shall be deemed acceptable to the Purchaser Parties and all such items shall constitute “Permitted Encumbrances” hereunder to which the Purchaser Parties may not object:
(i) all unpaid personal property, at its own cost real estate and expenseany excise Taxes related thereto, fully observeand all water, perform sewer, utility, trash and comply with other similar charges, in each case that are (A) not yet due and payable and delinquent as of the applicable Closing Date but are or may become or give rise to a Lien on all Permitted Encumbrances as the same apply to or bind Lessor or any portion of such Property, or (B) being contested in good faith by the owner of such Property and have been paid in full (it being understood that such items may be subject to apportionment or adjustment at the applicable Closing as provided herein);
(ii) undetermined or inchoate liens, rights of distress and charges incidental to construction, maintenance or current operations that have not at such time been filed or exercised or that relate to obligations not due or payable;
(iii) in respect of Properties located in Canada, reservations, limitations, provisos and conditions expressed in any original grant from the Crown or other grants of real or immovable property, or interests therein, and/or any statutory limitations to title set out by statute;
(iv) the rights of the Leased Properties. Subject Tenants as tenants only without any purchase options or rights of refusal pursuant to Leases or otherwise relating to the premises leased by a Tenant, other than any Ground Leases, now in effect or which may be in effect on the applicable Closing Date;
(v) the terms and conditions of the Ground Leases and any matter affecting the fee estate of lessor under a Ground Lease under a Ground Lease only and such matter does not encumber the leasehold estate;
(vi) except for any Mandatory Removal Exception, any Material Title Exceptions deemed to be a Permitted Encumbrance pursuant to this Section 7.3.2 hereof2.3 or otherwise waived by the Purchaser Parties as provided in this Section 2.3;
(vii) other than Mandatory Removal Exceptions, Tenant all easements, rights of way, encumbrances, covenants, conditions, restrictions that appear of record (other than Mandatory Removal Exceptions), provided that no such matter materially impairs the current use or value of such Property or the operation of the business conducted thereon in any material manner;
(viii) all matters created or caused by or on behalf of, or with the written consent of, the Purchaser Parties or any Affiliate thereof;
(ix) all Laws, including all environmental, building and zoning restrictions affecting such Property or the ownership, use or operation thereof adopted by any Governmental Entity having jurisdiction over such Property or the ownership, use or operation thereof, and all amendments or additions thereto now in effect or which may be in force and effect after the date hereof with respect to such Property, except to the extent that the Property is not in material compliance with any Laws relating to zoning; the Parties hereby acknowledge and agree that the failure of any Property to have any required certificate of occupancy or other permit or license (other than on account of a failure of such Property to be in material compliance with a Law relating to zoning) shall not cause, be treated as a title or permit its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires or assigns (whether or not permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination of any Permitted Encumbrance applicable to or binding upon Lessor or any of the Leased Properties. Notwithstanding anything to the contrary contained in Section 16.1 or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of Default survey matter and shall be deemed to have occurred under this Lease on account of Tenant’s breach of this Section 8.3.1, when, but only if, (a) Tenant’s breach of this Section 8.3.1 also results in a breach or default of an obligation under be a Permitted Encumbrance;
(x) any Liens of mechanics, (b) such Permitted Encumbrance breach material or default is not cured by Tenant materialmen, contractors, consultants, or other workmen or suppliers for labor and/or material provided to or for the benefit of the Property for or on or prior behalf of any Tenant, to the expiration extent such Liens encumber such Tenant’s leasehold interest only, are fully reimbursable by a Tenant, and are Liens for which a Tenant has an obligation to remove under a Lease (each, a “Tenant Lien”);
(xi) Liens securing obligations for which a credit in an amount sufficient to cause such Lien to be removed from or endorsed over in the Title Policy, together with the fees associated with such removal or endorsement, will be given to the Purchaser Parties at the Closing or that are reflected on the Estimated Initial Closing Statement or Estimated Deferred Closing Statement;
(xii) with respect to Commercial Loan Properties, the terms and conditions set forth in any of the cure periodPurchased Commercial Loans, if anyincluding any intercreditor agreements, applicable subordination agreements, participation agreements, cross collateralization agreements and similar agreements related thereto, and the rights of the Obligors set forth therein;
(xiii) Liens securing Existing Loans relating to such breach Property; and
(xiv) all other documents and matters listed or default by the terms of the instrument creating such Permitted Encumbrance (or such longer cure period as may be expressly authorized by an order of a court of competent jurisdiction), referred to on Schedules 3.6 and (c) on account of such Permitted Encumbrance breach or default, a real property interest, or a covenant, condition, restriction, license or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees that, in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s cure thereof, Lessor agrees to accept Tenant’s cure thereof, or reimbursement of Lessor’s costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s indemnification rights under Section 24.1 below3.19.
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.
Appears in 1 contract
Sources: Memorandum of Understanding (Blackstone Mortgage Trust, Inc.)
Permitted Encumbrances. (c) any Lien on any asset of the Company or any Subsidiary existing on the Effective Date and set forth on Schedule 6.02 ; provided that (i) such Lien shall not apply to any other asset of the Company or any Subsidiary other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 8.3.1 Subject to Section 7.3.2 hereof6.01 and (B) proceeds and products thereof and (ii) such Lien shall secure only those obligations that it secures on the Effective Date and extensions, Tenant shallrenewals, at its own cost replacements and expense, fully observe, perform and comply with all Permitted Encumbrances refinancings thereof so long as the same apply principal amount of such extensions, renewals, replacements and refinancings does not exceed the principal amount of the obligations being extended, renewed, replaced or refinanced or, in the case of any such obligations constituting Indebtedness, that are permitted under Section 6.01(b) as Refinancing Indebtedness in respect thereof; (d) any Lien existing on any asset prior to or bind Lessor the acquisition thereof by the Company or any Subsidiary or existing on any asset of the Leased Properties. Subject to Section 7.3.2 hereof, Tenant shall any Person that becomes a Subsidiary (or of any Person not cause, previously a Subsidiary that is merged or permit its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires consolidated with or assigns (whether or not into a Subsidiary in a transaction permitted hereunder) after the Effective Date prior to causethe time such Person becomes a Subsidiary (or is so merged or consolidated); provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary (or such merger or consolidation), whether (ii) such Lien shall not apply to any other asset of the Company or any Subsidiary (other than (A) the proceeds or products of such assets, (B) after-acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition, and (C) in the case of any such merger or consolidation, the assets of any Subsidiary without significant assets that was formed solely for the purpose of effecting such acquisition) and (iii) such Lien shall secure only those obligations that it secures on the date of such acquisition or the date such Person becomes a Subsidiary (or is so merged or consolidated) and extensions, renewals, replacements and refinancings thereof so long as the principal amount of such extensions, renewals and replacements does not exceed the principal amount of the obligations being extended, renewed or replaced or, in the case of any such obligations constituting Indebtedness, that are permitted under Section 6.01(g) as Refinancing Indebtedness in respect thereof; (e) Liens on fixed or capital assets acquired, constructed or improved (including any such assets made the subject of a Capital Lease Obligation incurred) by act the Company or omissionany Subsidiary; provided that (i) such Liens secure Indebtedness incurred to finance such acquisition, construction or 98 improvement and permitted by clause (f)(i) of Section 6.01 or any Refinancing Indebtedness in respect thereof permitted by clause (f)(ii) of Section 6.01 , and (ii) such Liens shall not apply to any other assets (except for replacements, additions and accessions to such assets) of the Company or any Subsidiary, other than the proceeds and products of such fixed or capital assets; provided that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender; (f) in connection with the sale or transfer of any Equity Interests or other assets in a transaction permitted under Section 6.05 , customary rights and restrictions contained in agreements relating to such sale or transfer pending the completion thereof; (g) in the case of (i) any Subsidiary that is not a wholly-owned Subsidiary or (ii) the Equity Interests in any Person that is not a Subsidiary, any breach ofencumbrance or restriction, default under including any put and call arrangements, related to Equity Interests in such Subsidiary or termination such other Person set forth in the organizational documents of such Subsidiary or such other Person or any related joint venture, shareholders’ or similar agreement; (h) any Lien on assets of any Permitted Encumbrance applicable Foreign Subsidiary; provided that (i) such Lien shall not apply to or binding upon Lessor any Collateral (including any Equity Interests in any Subsidiary that constitute Collateral) or any other assets of the Leased Properties. Notwithstanding anything Company or any other Loan Party and (ii) such Lien shall secure only Indebtedness or other obligations of such Foreign Subsidiary permitted hereunder; (i) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits, escrow arrangements or similar arrangements made by the Company or any Subsidiary in connection with any letter of intent or purchase agreement for a Permitted Acquisition or other transaction permitted hereunder; (j) Liens granted (i) by a Subsidiary that is not a Loan Party in respect of Indebtedness permitted to be incurred under Section 6.01(c) and (ii) by any Subsidiary in favor of any Loan Party; (k) Liens securing judgments for the contrary contained in Section 16.1 or elsewhere in this Lease but subject to Section 7.3.2 hereof, payment of money not constituting an Event of Default shall be deemed under Article VII ; (l) other Liens securing Indebtedness or other obligations in an aggregate principal amount not to have occurred under this Lease on account exceed the greater of Tenant’s breach (x) $30,000,000 and (y) 3% of this Section 8.3.1Consolidated Total Assets at any time outstanding; (m) Liens arising out of any conditional sale, whentitle retention, but only if, consignment or other similar arrangements for the sale of goods entered into by the Company or any Subsidiary in the ordinary course of business; (an) Tenant’s breach of this Section 8.3.1 also results in a breach or default of an obligation under a Permitted Encumbrance, (b) such Permitted Encumbrance breach or default is not cured by Tenant on or prior Liens securing Indebtedness permitted hereunder to finance insurance premiums solely to the expiration extent of such premiums; (o) statutory and common law rights of setoff and other Liens, similar rights and remedies arising as a matter of law encumbering deposits of cash, securities, commodities and other funds in favor of banks, financial institutions, other depository institutions, securities or commodities intermediaries or brokerage, and Liens of a collecting bank arising under Section 4-208 or 4-210 of the cure period, if any, applicable to such breach or default by the terms of the instrument creating such Permitted Encumbrance (or such longer cure period as may be expressly authorized by an order of a court of competent jurisdiction), and (c) on account of such Permitted Encumbrance breach or default, a real property interest, or a covenant, condition, restriction, license or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees that, UCC in effect in the event Lessor receives relevant jurisdiction or any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s reimbursement to Lessor similar law of any costs and expenses incurred by Lessor foreign jurisdiction on items in effecting any such cure be deemed a cure the course of any such Event of Default, provided, however, that, notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s cure thereof, Lessor agrees to accept Tenant’s cure thereof, or reimbursement of Lessor’s costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s indemnification rights under Section 24.1 below.
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.collection; 99
Appears in 1 contract
Permitted Encumbrances. Section 8.3.1 Subject to Section 7.3.2 hereof, Tenant shall, at its own cost Permitted Encumbrances" means the following and expense, fully observe, perform and comply with all Permitted Encumbrances as the same apply to or bind Lessor or any future modifications of any of the following which Landlord may execute or to which Landlord may give consent pursuant to subparagraph 10(b): (i) the encumbrances and other matters affecting the Leased Properties. Subject to Section 7.3.2 Property that are set forth in Exhibit B attached hereto and made a part hereof, Tenant shall not cause, or permit its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires or assigns (whether or not permitted hereunderii) to cause, whether by act or omission, any breach of, default the obligations imposed upon the buyer under or termination of any Permitted Encumbrance applicable to or binding upon Lessor or any of the Leased Properties. Notwithstanding anything to the contrary contained in Section 16.1 or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of Default shall be deemed to have occurred under this Lease on account of Tenant’s breach of this Section 8.3.1, when, but only if, (a) Tenant’s breach of this Section 8.3.1 also results in a breach or default of an obligation under a Permitted Encumbrance, (b) such Permitted Encumbrance breach or default is not cured by Tenant on or prior to the expiration of the cure periodContract, if any, applicable that survived the closing thereunder, (iii) any easement agreement or other document affecting title to the Leased Property that Landlord may execute, accept an assignment of or give its consent to pursuant to the Contract or pursuant to a document executed in accordance with the Contract or at the request of or with the consent of Tenant (including any such breach easement agreement or default other document executed by the terms of the instrument creating such Permitted Encumbrance (Landlord or such longer cure period as to which Landlord may be expressly authorized by an order of a court of competent jurisdictiongive consent pursuant to subparagraph 10(b)), (iv) Development Contracts, if any, in addition to those included in the preceding clauses, (v) any Liens securing the payment of Impositions which are not delinquent or claimed to be delinquent or which are being contested in accordance with subparagraph 9(p) of this Lease; (vi) the Assessment District Lien (as defined in the Contract); (vii) mechanics' and materialmen's liens for amounts not past due or claimed to be past due or which are being contested in accordance with subparagraph 9(o) of this Lease; and (cviii) on account of such Permitted Encumbrance breach or defaulteasements, a real property interestrights-of- way, or a covenant, condition, restriction, license or other beneficial right, created under such Permitted Encumbrance restrictions and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees thatsimilar encumbrances which, in the event Lessor receives aggregate, do not significantly interfere with the occupation, use or enjoyment of or ability to develop the Real Property in accordance with and for uses permitted by Applicable Laws or impose any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s cure thereof, Lessor agrees to accept Tenant’s cure thereof, or reimbursement of Lessor’s costs and expenses to effect such cure, provided, and significant monetary obligations on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects Landlord or otherwise materially and adversely decrease the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such fair market value of the Leased Property. Nothing contained in this Section 8.3 shall limit or definition is intended to impair Lessor’s indemnification Tenant's rights under Section 24.1 belowsubparagraph 10(c) which may be exercised without notice to or the consent of Landlord as provided therein.
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.
Appears in 1 contract
Sources: Lease Agreement (Genentech Inc)
Permitted Encumbrances. Section 8.3.1 Subject to Section 7.3.2 hereofthe terms of this Financing Agreement, Tenant shallthe Bond Purchase Agreement, at its own cost the Indenture, the Security Documents and expensethe Arkose Mining Venture Agreement, fully observethe Collateral and the Mortgaged Property (other than the Arkose Mining Venture property set forth in EXHIBIT A of the Mortgage) securing the Bond shall be the sole and exclusive property of, perform and comply with all title thereto shall continue to be vested in, the Borrower. Permitted Encumbrances as the same apply shall include: (a) any security interest granted to or bind Lessor held by J▇▇▇▇▇▇ County, Wyoming (the “Issuer”), UMB BANK, n.a. (the “Trustee”) or the State of Wyoming acting by and through the Wyoming state Treasurer (the “Purchaser”) under the Loan Documents; (b) any other encumbrance in favor of the Issuer, the Trustee or the Purchaser; (c) any encumbrance which is approved in writing by the Purchaser; (d) any encumbrance created under the agreement entitled the “Processing Agreement for Uranium Concentrates,” dated November 28, 2011, entered into between the Borrower and a third party for the processing of uranium resins produced by the Borrower, which contains an obligation of the Borrower which might exceed $200,000 or more per period of 12 months if the Borrower does not tender for processing a specified minimum quantity of resins to Power Resources in any of the Leased Properties. Subject calendar years 2013, 2014 and 2015; (e) any operating lease of personal property entered into in the ordinary course of business and having a term (including renewals) of greater than one year that is deemed to Section 7.3.2 hereofbe an encumbrance under applicable law; (f) any security interest in cash or cash equivalent on deposit with any person or entity as collateral for reclamation obligations pertaining to the Properties identified in the Mortgage; (g) any encumbrance for purchase money mortgages and other security interests on equipment acquired, Tenant shall not causeleased or held by Borrower (including equipment held by Borrower as lessee under leveraged leases) in the ordinary course of business to secure the purchase price of or rental payments with respect to the equipment or to secure indebtedness incurred solely for the purpose of financing the acquisition (including acquisition as lessee under leveraged leases), construction or permit its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires or assigns (whether or not permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination improvement of any Permitted Encumbrance applicable to or binding upon Lessor or any of the Leased Properties. Notwithstanding anything equipment, as long as the property secured by that encumbrance is limited to the contrary contained relevant equipment; (h) encumbrances of a collecting bank arising in the ordinary course of business under Section 16.1 4-210 of the Uniform Commercial Code in effect in the relevant jurisdiction; (i) any encumbrance arising by operation of law in the ordinary course of business in good faith including (1) w▇▇▇▇▇▇’▇, contractor’s, subscontractor’s, mechanic’s, materialman’s, supplier’s, solicitor’s or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of Default shall be deemed to have occurred under this Lease on account of Tenant’s breach of this Section 8.3.1, when, but only ifother similar statutory liens, (a2) Tenant’s breach liens in favor of this Section 8.3.1 also results in a breach or default of an obligation under a Permitted Encumbranceany government agency, (b3) such Permitted Encumbrance breach liens for taxes, assessments and governmental charges or default levies not yet due and payable, (4) the terms and conditions of mineral leases under which Borrower is not cured by Tenant on or prior to a lessee, and liens affecting the expiration interests of any third party lessor as the property owner under the relevant lease, (5) the terms and conditions of the cure periodLeases, if anyand (6) liens of pledges or deposits under workers’ compensation laws or similar legislation, applicable unemployment insurance or other types of social security or to such breach secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, governmental contracts, performance and return of money bonds and similar obligations; (j) any zoning or default similar law or right reserved to or vested in any government agency to control or regulate the use of any real property; (k) registered restrictions, covenants, land use contracts, building schemes, declarations of covenants, conditions and restrictions, servicing agreements in favor of any government agency, easements, rights-of-ways, servitudes or other similar rights in or with respect to real property (including open space and conservation easements, restrictions or similar agreements and rights of way and servitudes for railways, water, sewer, drainage, gas and oil pipelines, electricity, light, power, telephone, telegraph, internet or cable television services and utilities) granted to or reserved by third parties; and (l) any right reserved to or vested in any government agency, by the terms of the instrument creating such Permitted Encumbrance any permit, license, certificate, order, grant, classification (or such longer cure period as may be expressly authorized by an order of a court of competent jurisdictionincluding any zoning laws and ordinances and similar legal requirements), and (c) on account of such Permitted Encumbrance breach registration or defaultother consent, a real property interestapproval or authorization acquired from any government agency, to terminate any permit, license, certificate, order, grant, classification, registration or other consent, approval, or a covenant, condition, restriction, license authorization or to require annual or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or payments as a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees that, in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s cure thereof, Lessor agrees to accept Tenant’s cure thereof, or reimbursement of Lessor’s costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s indemnification rights under Section 24.1 below.
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this Lease, Lessor may, but shall not be obligated to, in its discretion and regardless continuance of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsedthat right. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.#2 - Financing Agreement E-1
Appears in 1 contract
Permitted Encumbrances. Buyer has obtained from Chicago Title Insurance Company a commitment, dated June 12, 1997, Commitment No. 4597-40012 (the "Title Commitment"), to issue an owner's policy of title insurance at Closing with respect to the fee interest in the Mall, subject to no exceptions except as shown in Schedule B-Section 8.3.1 Subject 2 to Section 7.3.2 hereof, Tenant shall, at its own cost and expense, fully observe, perform and comply with all Permitted Encumbrances the Title Commitment (such exceptions are hereinafter referred to collectively as the same apply to or bind Lessor or any "Permitted Encumbrances"). A copy of Schedule B-Section 2 of the Leased Properties. Subject Title Commitment is attached to Section 7.3.2 hereofthis Agreement as Exhibit H. If, Tenant as of the Closing Date, the Owner Partnership shall not causeown the fee interest in the Mall free and clear of all Liens except the Permitted Encumbrances, or permit Buyer shall have the option, as its respective agentssole remedy, employees, contractors, invitees, subtenants, licensees, concessionaires or assigns (whether or not permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination of any Permitted Encumbrance applicable to or binding upon Lessor or any of the Leased Properties. Notwithstanding anything to the contrary contained in Section 16.1 or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of Default shall be deemed to have occurred under this Lease on account of Tenant’s breach of this Section 8.3.1, when, but only if, either (a) Tenant’s breach terminating this Agreement, in which event the Escrow Agent shall return the Initial Deposit and the Closing Deposit, together with interest thereon, if any, to Buyer, and Sellers shall reimburse Buyer for Buyer's net cost of title examination, whereupon neither party shall have any further rights or obligations under this Section 8.3.1 also results in a breach Agreement, or default of an obligation under a Permitted Encumbrance, (b) accepting such Permitted Encumbrance breach title as the Owner Partnership shall then have, without any reduction of the Purchase Price or default any credit or allowance against the same; provided, that Buyer shall not have the option to terminate this Agreement with respect to any encumbrance which is of record as of the date of the Title Commitment and which is not cured shown on Schedule B-Section 2 of the Title Commitment (except for any encumbrance arising out of or in connection with the litigation filed by Tenant Harbor City Contractors, Inc. against the Owner Partnership, filed on January 23, 1996. From and after the date of this Agreement, Buyer agrees to, and shall cause Manager to, provide Sellers with prompt written notice of any matter of which Buyer or Manager becomes aware which constitutes an encumbrance or other interest giving rise to Buyer's option to terminate this Agreement under this Section 7.14. If on or prior to the expiration Closing Date Buyer provides Sellers with written notice of an encumbrance or other interest giving rise to Buyer's option to terminate this Agreement under this Section 7.14, Sellers shall have the option, but shall not have any obligation, to extend the Closing Date to the earlier of (x) 45 days after the Closing Date or (y) the date as of which Buyer's loan commitment from its mortgage lender expires, as the same may be extended without cost to Buyer and without any rise in the interest rate, which extension Buyer agrees to seek diligently to obtain at Sellers' request, in either case to provide Sellers with the opportunity to cure periodany such defect. The term "net cost of title examination" shall mean the expense actually incurred by Buyer for (i) the amount, if any, applicable to such breach or default charged by Chicago Title Insurance Company for the terms examination of title without the issuance of a policy and (ii) updating the survey of the instrument creating such Permitted Encumbrance (or such longer cure period as may be expressly authorized by an order of a court of competent jurisdiction), and (c) on account of such Permitted Encumbrance breach or default, a real property interest, or a covenant, condition, restriction, license or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees that, in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s cure thereof, Lessor agrees to accept Tenant’s cure thereof, or reimbursement of Lessor’s costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s indemnification rights under Section 24.1 belowMall.
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.
Appears in 1 contract
Sources: Agreement of Purchase and Sale of Partnership Interests (Eastpoint Mall LTD Partnership)
Permitted Encumbrances. Section 8.3.1 Subject to Section 7.3.2 hereofthe terms of the Financing Agreement, Tenant shallthe Bond Purchase Agreement, at its own cost the Indenture, the Security Documents and expensethe Arkose Mining Venture Agreement, fully observethe Collateral and the Mortgaged Property (other than the Arkose Mining Venture property set forth in EXHIBIT A of this Mortgage) securing the Bond shall be the sole and exclusive property of, perform and comply with all title thereto shall continue to be vested in, the Mortgagor. Permitted Encumbrances as the same apply shall include: (a) any security interest granted to or bind Lessor held by ▇▇▇▇▇▇▇ County, Wyoming (the “Issuer”), UMB BANK, n.a. (the “Trustee”) or the State of Wyoming acting by and through the Wyoming state Treasurer (the “Purchaser”) under the Loan Documents; (b) any other encumbrance in favor of the Issuer, the Trustee or the Purchaser; (c) any encumbrance which is approved in writing by the Purchaser; (d) any encumbrance created under the agreement entitled the “Processing Agreement for Uranium Concentrates,” dated November 28, 2011, entered into between the Borrower and a third party for the processing of uranium resins produced by the Borrower, which contains an obligation of the Borrower which might exceed $200,000 or more per period of 12 months if the Borrower does not tender for processing a specified minimum quantity of resins to Power Resources in any of the Leased Properties. Subject calendar years 2013, 2014 and 2015; (e) any operating lease of personal property entered into in the ordinary course of business and having a term (including renewals) of greater than one year that is deemed to Section 7.3.2 hereofbe an encumbrance under applicable law; (f) any security interest in cash or cash equivalent on deposit with any person or entity as collateral for reclamation obligations pertaining to the Properties identified in the Mortgage; (g) any encumbrance for purchase money mortgages and other security interests on equipment acquired, Tenant shall not causeleased or held by Borrower (including equipment held by Borrower as lessee under leveraged leases) in the ordinary course of business to secure the purchase price of or rental payments with respect to the equipment or to secure indebtedness incurred solely for the purpose of financing the acquisition (including acquisition as lessee under leveraged leases), construction or permit its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires or assigns (whether or not permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination improvement of any Permitted Encumbrance applicable to or binding upon Lessor or any of the Leased Properties. Notwithstanding anything equipment, as long as the property secured by that encumbrance is limited to the contrary contained relevant equipment; (h) encumbrances of a collecting bank arising in the ordinary course of business under Section 16.1 4-210 of the Uniform Commercial Code in effect in the relevant jurisdiction; (i) any encumbrance arising by operation of law in the ordinary course of business in good faith including (1) ▇▇▇▇▇▇▇’▇, contractor’s, subscontractor’s, mechanic’s, materialman’s, supplier’s, solicitor’s or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of Default shall be deemed to have occurred under this Lease on account of Tenant’s breach of this Section 8.3.1, when, but only ifother similar statutory liens, (a2) Tenant’s breach liens in favor of this Section 8.3.1 also results in a breach or default of an obligation under a Permitted Encumbranceany government agency, (b3) such Permitted Encumbrance breach liens for taxes, assessments and governmental charges or default levies not yet due and payable, (4) the terms and conditions of mineral leases under which Borrower is not cured by Tenant on or prior to a lessee, and liens affecting the expiration interests of any third party lessor as the property owner under the relevant lease, (5) the terms and conditions of the cure periodLeases, if anyand (6) liens of pledges or deposits under workers’ compensation laws or similar legislation, applicable unemployment insurance or other types of social security or to such breach secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, governmental contracts, performance and return of money bonds and similar obligations; (j) any zoning or default similar law or right reserved to or vested in any government agency to control or regulate the use of any real property; (k) registered restrictions, covenants, land use contracts, building schemes, declarations of covenants, conditions and restrictions, servicing agreements in favor of any government agency, easements, rights-of-ways, servitudes or other similar rights in or with respect to real property (including open space and conservation easements, restrictions or similar agreements and rights of way and servitudes for railways, water, sewer, drainage, gas and oil pipelines, electricity, light, power, telephone, telegraph, internet or cable television services and utilities) granted to or reserved by third parties; and (l) any right reserved to or vested in any government agency, by the terms of the instrument creating such Permitted Encumbrance any permit, license, certificate, order, grant, classification (or such longer cure period as may be expressly authorized by an order of a court of competent jurisdictionincluding any zoning laws and ordinances and similar legal requirements), and (c) on account of such Permitted Encumbrance breach registration or defaultother consent, a real property interestapproval or authorization acquired from any government agency, to terminate any permit, license, certificate, order, grant, classification, registration or other consent, approval, or a covenant, condition, restriction, license authorization or to require annual or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or payments as a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees that, in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s cure thereof, Lessor agrees to accept Tenant’s cure thereof, or reimbursement of Lessor’s costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s indemnification rights under Section 24.1 below.
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this Lease, Lessor may, but shall not be obligated to, in its discretion and regardless continuance of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsedthat right. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.#6 - Mortgage D-1
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Permitted Encumbrances. (c) any Lien on any asset of the Company or any Subsidiary existing on the Effective Date and set forth on Schedule 6.02; provided that (i) such Lien shall not apply to any other asset of the Company or any Subsidiary other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 8.3.1 Subject to Section 7.3.2 hereof6.01 and (B) proceeds and products thereof and (ii) such Lien shall secure only those obligations that it secures on the Effective Date and extensions, Tenant shallrenewals, at its own cost replacements and expense, fully observe, perform and comply with all Permitted Encumbrances refinancings thereof so long as the same apply principal amount of such extensions, renewals, replacements and refinancings does not exceed the principal amount of the obligations being extended, renewed, replaced or refinanced or, in the case of any such obligations constituting Indebtedness, that are permitted under Section 6.01(b) as Refinancing Indebtedness in respect thereof; (d) any Lien existing on any asset prior to or bind Lessor the acquisition thereof by the Company or any Subsidiary or existing on any asset of the Leased Properties. Subject to Section 7.3.2 hereof, Tenant shall any Person that becomes a Subsidiary (or of any Person not cause, previously a Subsidiary that is merged or permit its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires consolidated with or assigns (whether or not into a Subsidiary in a transaction permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination of any Permitted Encumbrance applicable to or binding upon Lessor or any of after the Leased Properties. Notwithstanding anything to the contrary contained in Section 16.1 or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of Default shall be deemed to have occurred under this Lease on account of Tenant’s breach of this Section 8.3.1, when, but only if, (a) Tenant’s breach of this Section 8.3.1 also results in a breach or default of an obligation under a Permitted Encumbrance, (b) such Permitted Encumbrance breach or default is not cured by Tenant on or Effective Date prior to the expiration time such Person becomes a Subsidiary (or is so merged or consolidated); provided that (i) such Lien is not created in contemplation of the cure period, if any, applicable to or in connection with such breach acquisition or default by the terms of the instrument creating such Permitted Encumbrance Person becoming a Subsidiary (or such longer cure period as may merger or consolidation), (ii) such Lien shall not apply to any other asset of the Company or any Subsidiary (other than (A) the proceeds or products of such assets, (B) after-acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be expressly authorized by an order of a court of competent jurisdiction)permitted to apply to any property to which such requirement would not have applied but for such acquisition, and (cC) in the case of any such merger or consolidation, the assets of any Subsidiary without significant assets that was formed solely for the purpose of effecting such acquisition) and (iii) such Lien shall secure only those obligations that it secures on account the date of such Permitted Encumbrance breach acquisition or defaultthe date such Person becomes a Subsidiary (or is so merged or consolidated) and extensions, a real property interestrenewals, replacements and refinancings thereof so long as the principal amount of such extensions, renewals and replacements does not exceed the principal amount of the obligations being extended, renewed or a covenant, condition, restriction, license or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees thatreplaced or, in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure shall not excuse Tenant from, or be deemed a cure of, such Event of Default, nor shall Tenant’s reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure case of any such Event of Default, provided, however, that, notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s cure thereof, Lessor agrees to accept Tenant’s cure thereof, or reimbursement of Lessor’s costs and expenses to effect such cure, provided, and on the conditionobligations constituting Indebtedness, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s indemnification rights are permitted under Section 24.1 below.
Section 8.3.2 If (a6.01(g) a Permitted Encumbrance breach or default of the nature described as Refinancing Indebtedness in Section 8.3.1(a) above occurs, and (b) on account respect thereof, if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.; 95
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Permitted Encumbrances. Section 8.3.1 Subject to Section 7.3.2 hereof, Tenant shall, at its ------------- own cost and expense, fully observe, perform and comply with all Permitted Encumbrances as the same apply to or bind Lessor or any of the Leased Properties. Subject to Section 7.3.2 hereof, Tenant shall not cause, or permit ------------- its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires or assigns (whether or not permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination of any Permitted Encumbrance applicable to or binding upon Lessor or any of the Leased Properties. Notwithstanding anything to the contrary contained in Section 16.1 ------------ or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of ------------- Default shall be deemed to have occurred under this Lease on account of Tenant’s 's breach of this Section 8.3.1, when, but only if, (a) Tenant’s 's breach of this Section ------------- Section
8.3.1 also results in a breach or default of an obligation under a ------------- Permitted Encumbrance, (b) such Permitted Encumbrance breach or default is not cured by Tenant on or prior to the expiration of the cure period, if any, applicable to such breach or default by the terms of the instrument creating such Permitted Encumbrance (or such longer cure period as may be expressly authorized by an order of a court of competent jurisdiction), and (c) on account of such Permitted Encumbrance breach or default, a real property interest, or a covenant, condition, restriction, license or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees that, in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor shall promptly forward a copy thereof to Tenant. Tenant agrees that, if Lessor, at its option, elects to cure an Event of Default by Tenant under this Section 8.3.1, such cure shall not excuse Tenant from, or be ------------- deemed a cure of, such Event of Default, nor shall Tenant’s 's reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, -------- ------- notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s 's cure thereof, Lessor agrees to accept Tenant’s 's cure thereof, or reimbursement of Lessor’s 's costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s 's indemnification rights under Section 24.1 below.. ------------
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, ---------------- if the same is not cured, the condition referenced in Section 8.3.1(c) above ---------------- would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this ------------ Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or ---------------- whether the cure period referenced in Section 8.3.1(b) above has expired or is ---------------- likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default -------- ------- referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.
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Permitted Encumbrances. Section 8.3.1 Subject To the extent that Purchaser has not received the Title Commitment and/or survey or to Section 7.3.2 hereofthe extent issues are marked "open" on Schedule 4.4 for each parcel of Owned Real Property as of the date of this Agreement, Tenant shalltitle to each parcel of such Owned Real Property will be good and marketable, at its own cost free and expenseclear of any security interest, fully observemortgage, perform pledge, lien, charge, encumbrance, right of way, easement or adverse claim of any kind or nature except (i) liens for current taxes not yet due and comply payable; and (ii) those encumbrances, rights of way, easements or adverse claims (collectively, the "Restrictions") of a type and kind consistent with all the Permitted Encumbrances described on Schedule 4.4 as the same apply to or bind Lessor or any of the Leased Properties. Subject to Section 7.3.2 hereof, Tenant shall not cause, or permit its respective agents, employees, contractors, invitees, subtenants, licensees, concessionaires or assigns (whether or not permitted hereunder) to cause, whether by act or omission, any breach of, default under or termination date of any Permitted Encumbrance applicable to or binding upon Lessor or any of the Leased Properties. Notwithstanding anything to the contrary contained in Section 16.1 or elsewhere in this Lease but subject to Section 7.3.2 hereof, an Event of Default Agreement which Restrictions shall be deemed added to have occurred under this Lease on account of Tenant’s breach of this Section 8.3.1, when, but only if, (a) Tenant’s breach of this Section 8.3.1 also results in a breach or default of an obligation under a Permitted Encumbrance, (b) such Permitted Encumbrance breach or default is not cured by Tenant Schedule 4.4 on or prior to the expiration of the cure periodClosing Date; PROVIDED, if anyHOWEVER, applicable should Purchaser and Seller be unable to such breach or default by the terms of the instrument creating such Permitted Encumbrance (or such longer cure period as may agree whether a Restriction shall be expressly authorized by an order of a court of competent jurisdiction), and (c) on account of such Permitted Encumbrance breach or default, a real property interest, or a covenant, condition, restriction, license or other beneficial right, created under such Permitted Encumbrance and benefiting Lessor or a Leased Property is terminated or otherwise lost or at material risk of being terminated or otherwise lost. Lessor agrees that, in the event Lessor receives any written notice of default from a party to a Permitted Encumbrance, Lessor then such Restriction shall promptly forward be deemed a copy thereof to TenantPermitted Encumbrance and Seller shall indemnify and hold a Purchaser Indemnified Party (as hereinafter defined) harmless from, against and in respect of any and all loss, liability, and expense (including without limitation, reasonable expenses and attorney's fees) suffered or incurred by a Purchaser Indemnified Party by reason of such Restriction (the "Section 6.12 Losses"). Tenant agrees thatNotwithstanding the foregoing, if Lessor, at its option, elects to cure an Event of Default by Tenant Seller shall have no liability under this Section 8.3.1, 6.12 to indemnify a Purchaser Indemnified Party for any Section 6.12 Losses related to an Acquired Facility until the aggregate costs for such cure shall not excuse Tenant from, or be deemed a cure of, Section 6.12 Losses related to such Event of Default, nor shall Tenant’s reimbursement to Lessor of any costs and expenses incurred by Lessor in effecting any such cure be deemed a cure of any such Event of Default, provided, however, that, notwithstanding the foregoing, even after the occurrence of such an Event of Default by Tenant and/or Lessor’s cure thereof, Lessor agrees to accept Tenant’s cure thereof, or reimbursement of Lessor’s costs and expenses to effect such cure, provided, and on the condition, that Lessor has not, prior thereto, terminated this Lease as it affects the Leased Property to which such Permitted Encumbrance relates or dispossessed Tenant from such Leased Property. Nothing contained in this Section 8.3 shall limit or impair Lessor’s indemnification rights under Section 24.1 belowAcquired Facility exceed $5,000.
Section 8.3.2 If (a) a Permitted Encumbrance breach or default of the nature described in Section 8.3.1(a) above occurs, and (b) on account thereof, if the same is not cured, the condition referenced in Section 8.3.1(c) above would, or is likely to, be satisfied, Tenant agrees that, notwithstanding anything to the contrary contained in Section 17.1 below or elsewhere in this Lease, Lessor may, but shall not be obligated to, in its discretion and regardless of whether Tenant is proceeding to cure, or attempting to cure, the Permitted Encumbrance breach or default referenced in Section 8.3.1(a) above or whether the cure period referenced in Section 8.3.1(b) above has expired or is likely to expire before completion of necessary cure efforts, take such actions as it deems necessary or appropriate to attempt to cure such Permitted Encumbrance breach or default, provided, however, that, if the breach or default referenced in subsection (a) above has applicable thereto, by the express terms of the applicable Permitted Encumbrance, a stated period to cure the same, Lessor agrees not to commence to cure such breach or default unless and until one-half (1/2) of the aforesaid stated cure period has elapsed. If Lessor so proceeds to attempt to cure any such Permitted Encumbrance breach or default, Tenant agrees, within fifteen (15) days following receipt of a written demand therefor and reasonable supporting documentation, to reimburse Lessor for the reasonable amount of all costs and expenses incurred by Lessor in curing, or attempting to cure, any such Permitted Encumbrance breach or default.
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