Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity): (a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or (b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable; (c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty. (d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof; (e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default; (f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law: (i) commences a voluntary case; (ii) consents to the entry of an order for relief against it in an involuntary case; (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property; (iv) makes a general assignment for the benefit of its creditors; or (v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency; (g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days; (h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 4 contracts
Sources: Guaranty and Payment Agreement (Calpine Corp), Guaranty and Payment Agreement (Calpine Corp), Guaranty and Payment Agreement (Calpine Corp)
Defaults. The following events (hereinafter called “Events of Default”) shall constitute an "Event “Events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):” under this Agreement:
(a) the Guarantor Borrower shall fail to pay any principal of any Loan or any Reimbursement Obligation when and as the RockGen Lessee same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in Section 10.1(a)) payable under this Agreement, when and as the Facility Lease same shall become due and payable, and such failure shall continue unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on behalf of any Loan Party or any Subsidiary in or in connection with this Agreement or any Loan Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been materially incorrect when made or deemed made; provided, however, if any Event of Default under this Section 10.1(c) occurs on account of a misrepresentation made in good faith under Section 4.19 hereof, the Borrower shall have 30 consecutive days from the earlier of (i) the date the Borrower becomes aware of the facts forming the basis of the Event of Default, or (ii) the date notice of such Event of Default shall have been made to the Borrower by the Lender, in which to take the steps necessary to remedy the underlying facts and render the representation or warranty true and correct;
(d) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in Section 6.6(a), Section 6.7(a) (with respect to a Loan Party’s existence) or 6.11, or in Article 7;
(e) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those which constitute a default under another Section of this Article 10), and such failure shall continue unremedied for a period of (i) 5 days after the earlier of such breach or notice thereof from the Lender if such breach relates to terms or provisions of Section 6.1, 6.3, 6.4, 6.5, 6.6 (other than Section 6.6(a)), 6.7, or 6.9 of this Agreement or (ii) 15 days after the earlier of such breach or notice thereof from the Lender if such breach relates to terms or provisions of any other Section of this Agreement;
(f) any Loan Party or any Subsidiary shall fail to make any payment with (whether of principal or interest and regardless of amount) in respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value any Material Indebtedness, when and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after as the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturitypayable, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary failure is being contested in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvencycompliance with Section 6.5;
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this Section 10.1(g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;
(h) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief with in respect to it of a Loan Party or any Subsidiary of any Loan Party or its debts debts, or of a substantial part of its assets, under Title 11 any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Loan Party or any Subsidiary of any Loan Party or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the Bankruptcy Code foregoing shall be entered;
(i) any Loan Party or any Subsidiary of any Loan Party shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency insolvency, receivership or other similar law now or hereafter in effect, or (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 10.1(h), (iii) apply for or consent to the appointment of a receiver, trustee, receivercustodian, liquidatorsequestrator, custodian conservator or other similar official with respect to it for such Loan Party or Subsidiary of any Loan Party or for a substantial part of its property assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (iiivi) take any action for the winding-up or liquidation purpose of effecting any of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 daysforegoing;
(hj) any representation Loan Party or warranty made by any Subsidiary of any Loan Party shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the Guarantor herein payment of money in an aggregate amount in excess of $500,000 shall prove to have been incorrect in be rendered against any material respect when made or misleading in any material respect when made because of Loan Party, and the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied same shall remain undischarged for a period of 30 consecutive days after receipt during which execution shall not be effectively stayed or any action shall be legally taken by a judgment creditor to attach or levy upon any assets with an aggregate market value in excess of $200,000 of any Loan Party or to enforce any such judgment or any Loan Party shall fail within 30 days to discharge one or more non-monetary judgments or orders which, individually or in the Guarantor aggregate, could reasonably be expected to have a Material Adverse Effect, which judgments or orders, in any such case, are not stayed on appeal or otherwise being appropriately contested in good faith by proper proceedings diligently pursued;
(l) an ERISA Event shall have occurred that, in the opinion of written notice thereof; the Lender, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) the occurrence of any “default”, as defined in any Loan Document (other than this Agreement) or the breach of any of the terms or provisions of any Loan Document (other than this Agreement), which default or breach continues beyond any period of grace therein provided, howeverprovided if such default is on account of a default by a Loan Party other than the Borrower, that if such condition cannot default also could reasonably be remedied within such 30-day period, then the period within which expected to remedy such condition have a Material Adverse Effect;
(o) any Loan Guaranty shall fail to remain in full force or effect or any action shall be extended up taken to an additional 60 daysdiscontinue or to assert the invalidity or unenforceability of the Loan Guaranty, so long as or any Loan Guarantor shall fail to comply with any of the Guarantor diligently pursues such remedy terms or provisions of the Loan Guaranty to which it is a party and such condition could reasonably be expected to have a Material Adverse Effect, or any Loan Guarantor shall deny that it has any further liability under the Loan Guaranty to which it is reasonably capable of being remedied within a party, or shall give notice to such additional 60-day period. The grace periods effect;
(p) any Security Document shall for any reason fail to create a valid and perfected first priority security interest in any Collateral appropriately described therein and purported to be covered thereby, after any applicable cure period as set forth in Section 7.1(a10.1(c), except as permitted by the terms of any Collateral Document, or any Collateral Document shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of any Collateral Document, or there shall exist a default under any Collateral Document beyond any applicable notice or cure period, provided if such default is on account of a default by a Loan Party other than the Borrower, that such default also could reasonably be expected to have a Material Adverse Effect;
(q) any material provision of any Loan Document for any reason ceases to be valid, binding and enforceable in accordance with its terms (b) above or any Loan Party shall not affect challenge the enforceability of any Loan Document or shall assert in writing, or engage in any way the right hereunder action or inaction based on any such assertion, that any provision of any Beneficiary entitled of the Loan Documents has ceased to a payment be or otherwise is not valid, binding and enforceable in accordance with its terms); or
(r) any event of default occurs and is continuing beyond any amount payable applicable grace and cure periods with respect to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard that is not pursuant to the existence Loan Documents, of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingLoan Party to Lender.
Appears in 4 contracts
Sources: Credit Facility Agreement (Transcat Inc), Credit Facility Agreement (Transcat Inc), Credit Facility Agreement (Transcat Inc)
Defaults. The (a) Each of the following events shall constitute an "“Event of Default" ” hereunder (whether any whatever the reason for such event of default and whether it shall be voluntary or involuntary involuntary, or come about or be effected by operation of law law, or be pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entityadministrative or governmental body):
(a1) the Guarantor or the RockGen if Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) pay when due any sum under this Agreement and payable under such Facility Lease failure shall continue for a period of three business days after oral, facsimile, electronic mail or written notice has been given by Lessor to Lessee; (2) if Lessee shall fail to perform any covenant or agreement contained herein, and such failure shall continue for a period of fifteen (15) calendar days after notice thereof shall have been given in writing; (3) if any representation or warranty made by Lessee in this Guaranty within five Agreement or any agreement, document or certificate delivered by the Lessee in connection herewith is or shall become incorrect in any material respect; (4) if Lessee shall operate the Aircraft in violation of any applicable law, regulation, rule or order of any governmental authority having jurisdiction thereof or shall operate the Aircraft when the insurance required hereunder shall not be in effect; (5) if any proceedings shall be commenced under any bankruptcy, insolvency, reorganization, readjustment of debt, receivership or liquidation law or statute of any jurisdiction; or (6) if any such proceedings shall be instituted against either Party and shall not be withdrawn or terminated within thirty (30) calendar days after the same shall become due thereunder; ortheir commencement.
(b) Upon the Guarantor occurrence of any Event of Default Lessor may, at its option, exercise any or all remedies available at law or in equity, including, without limitation, any or all of the RockGen following remedies, as Lessor in its sole discretion shall elect: (1) by notice in writing to terminate this Agreement immediately, whereupon all rights of the Lessee to the use or possession of the Aircraft or any part thereof shall absolutely cease and terminate but Lessee shall fail to make any other amount payable under any Operative Document after remain liable as hereinafter provided; and thereupon Lessee, if so requested by Lessor, shall at its expense promptly return the Aircraft and Aircraft Documentation as required by this Agreement or Lessor, at its option, may enter upon the premises where the Aircraft or Aircraft Documentation are located and take immediate possession of and remove the same shall become due thereunder by summary proceedings or otherwise. Lessee specifically authorizes Lessor’s entry upon any premises where the Aircraft or Aircraft Documentation may be located for the purpose of, and such failure shall waives any cause of action it may have continued from arising from, a period peaceful retaking of ten the Aircraft or Aircraft Documentation; or (102) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement cause to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any hereunder. Lessee agrees to pay all costs and expenses incurred by Lessor for such performance and acknowledges that such performance by Lessor shall not be deemed to cure said Event of Default.
(c) Lessee shall be liable for all costs, charges and expenses, including reasonable legal fees and disbursements, incurred by Lessor by reason of the Operative Documents, 30 days after receipt by the Guarantor occurrence of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee any Event of Default or the Pass Through Trustee; providedexercise of Lessor’s remedies with respect thereto. No remedy referred to herein is intended to be exclusive, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition but each shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy cumulative and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect in addition to any other obligation, covenant remedy referred to above or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually otherwise available to Lessor at law or in equity. Lessor shall not be deemed to have waived any default, Event of Default or right hereunder unless the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default same is acknowledged in writing by the Guarantor or any Restricted Subsidiary in the payment when due duly authorized representative of Lessor. No waiver by Lessor of any portion default or Event of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding Default hereunder shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder be, or be construed to be, a waiver of any Beneficiary entitled to a payment of any amount payable to it, future or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, subsequent default or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided. The failure or delay of Lessor in exercising any rights granted it hereunder upon any occurrence of any such right upon the continuation or recurrence of any such contingencies or similar contingencies, however, notwithstanding and any single or partial exercise of any particular right by Lessor shall not exhaust the foregoing, no Lease Event same or constitute a waiver of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingany other right provided herein.
Appears in 4 contracts
Sources: Aircraft Dry Lease Agreement (Blackstone Group L.P.), Aircraft Dry Lease Agreement (Blackstone Group L.P.), Aircraft Dry Lease Agreement (Blackstone Group L.P.)
Defaults. The occurrence of any one or more of the following events shall constitute an "Event a material default and breach of Default" this Lease by Lessee:
(a) The failure by Lessee to make any payment of rent or any other payment required to be made by Lessee hereunder within ten (whether 10) days of the date when due.
(b) The failure by Lessee to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Lessee, other than described in Section15.1(b) above, where such failure shall continue for a period of thirty (30) days after written notice thereof from Lessor to Lessee.
(i) The making by Lessee of any general assignment or general arrangement for the benefit of creditors; (ii) the filing by or against Lessee of a petition to have Lessee adjudged a bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Lessee, the same is dismissed within sixty (60) days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where possession is not restored to Lessee within thirty (30) days; or (iv) the attachment, execution, or other judicial seizure of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where such seizure is not discharged within thirty (30) days.
(d) The chronic delinquency by Lessee in the payment of monthly rental, or any other periodic payment required to be paid by Lessee under this Lease. “Chronic delinquency” shall mean failure by Lessee to pay monthly rental, or any other periodic payment required to be paid by Lessee under this Lease, within ten (10) days as described in Section 15.1(b) above, for any three (3) months (consecutive or nonconsecutive) during any twelve (12) month period. In the event of the chronic delinquency, at Lessor’s option, Lessor shall have the additional right to require that monthly rental be voluntary paid by Lessee quarter-annually, in advance, for the remainder of the Term.
(e) Any guarantor of the Lease revokes or involuntary otherwise terminates, or come about purports to revoke or be effected otherwise terminate (by operation of law or pursuant to otherwise) any guaranty of all or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal Lessee’s obligations under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.this Lease
Appears in 4 contracts
Sources: Standard Commercial Industrial Multi Tenant Triple Net Lease (HTG Molecular Diagnostics, Inc), Standard Commercial Industrial Multi Tenant Triple Net Lease (HTG Molecular Diagnostics, Inc), Standard Commercial Industrial Multi Tenant Triple Net Lease (HTG Molecular Diagnostics, Inc)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) Customer shall be in default under this Agreement upon the Guarantor or occurrence of any of the RockGen Lessee under the Facility Lease shall fail following:
(i) Customer fails to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) pay when due and payable any amount to be paid under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder Agreement, and such failure shall have continued from a then continues for an additional period of ten (10) Business Days business days after receipt notice of overdue payment is delivered by ConEdison Solutions to the RockGen Lessee Customer;
(ii) (ii) Customer fails to perform or meet any of its required duties or obligations under this Agreement and fails to cure such failure and the Guarantor effects of such failure within thirty (30) days of receipt of written notice of default, unless such failure by failures and effects cannot be completely cured within thirty (30) days after said written notice, in which case the RockGen Lessee and/or procedures for additional time to cure the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants default set forth in Section 3.3 12 shall apply;
(transfer iii) Customer goes into receivership, or makes an assignment for the benefit of RockGen Lessee ownership)creditors whether voluntary or involuntary, 3.6 or a petition is filed by or against the Customer under any bankruptcy, insolvency or similar law and such petition is not dismissed within thirty (Guarantor merger30) or 8.4 (assignment of Guaranty) of this Guarantydays.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of ConEdison Solutions shall be in default under this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to Agreement upon the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement occurrence of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Lawfollowing:
(i) commences a voluntary caseContractor furnishes any statement, representation, warranty, guaranty, certification in connection with this Agreement that is materially false, deceptive or incorrect;
(ii) consents to Contractor is declared bankrupt, has a petition in bankruptcy filed against it, or if the entry of an order Contractor file for relief against it in an involuntary casebankruptcy protection;
(iii) consents Contractor causes or threatens to the appointment of a Custodian of it cause or for all create labor unrest, dispute, picketing, slowdowns, work stoppage, strike or substantially all of its property;disharmony; or
(iv) makes a general assignment for the benefit Contractor fails to perform or meet any of its creditors; or
required duties, obligations, warranties or guarantees under this Agreement, and Contractor fails to cure such failure(s) or effects of such failure(s) within thirty (v30) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 days of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; providedof default, however, that if unless such condition failure(s) or effects cannot be remedied completely cured within such thirty (30-day period) days after said written notice, then in which case the period within which procedures for additional time to remedy such condition shall be extended up to an additional 60 days, so long cure the default as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above 12 shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingapply.
Appears in 3 contracts
Sources: Energy Savings Performance Contract, Energy Savings Performance Contract, Energy Savings Performance Contract
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
If Maker (a) defaults in the Guarantor payment of the principal or the RockGen Lessee interest under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) Note when it becomes due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:)
(i) commences a voluntary case;
(ii) consents to the entry of makes an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) creditors or admits in writing its his inability to pay his debts generally pay its debts as such debts they become due; or takes any comparable action under any foreign laws relating to insolvency;
(gii) an involuntary case order, judgment or other proceeding shall be commenced against the Guarantor decree is entered adjudicating Maker bankrupt or insolvent; or (iii) any Significant Subsidiary seeking (i) liquidation, reorganization or other order for relief with respect to it Maker is entered under the Federal Bankruptcy Code; or its debts (iv) Maker commences any proceeding relating to Maker under Title 11 any bankruptcy reorganization, arrangement, insolvency, or readjustment of debt law of any jurisdiction; or any such petition or application is filed, or any such proceeding is commenced, against Maker, the Company may exercise any and all the rights, powers and remedies of any owner of the Bankruptcy Pledged Securities (including the right to vote the Units) and shall have and may exercise without demand any and all the rights and remedies granted to a secured party upon default under the Uniform Commercial Code of Delaware (the “UCC”) or otherwise available to the Company under applicable law. Without limiting the foregoing, upon a default in the payment of principal or interest under this Note, the Company is authorized to sell, assign and deliver at its discretion, from time to time, all or any bankruptcypart of the Pledged Securities at any private sale or public auction, insolvency on not less than ten days written notice to Maker, at such price or prices and upon such terms as the Company may deem advisable. Maker shall have no right to the Pledged Securities after any such sale or assignment. At any such sale or auction, the Company may bid for, and become the acquirer of, the whole or any part of the Pledged Securities offered for sale. In case of any such sale, after deducting the costs, attorneys’ fees and other similar law now or hereafter expenses of sale and delivery, the remaining proceeds of such sale shall be applied to the principal of and accrued interest on this Note; provided that after payment in effectfull of the indebtedness evidenced by this Note, the balance of the proceeds of sale then remaining shall be paid to Maker and Maker shall be entitled to the return of any of the Pledged Securities remaining in the hands of the Company. Maker, or (ii) the appointment his successors and assigns, hereby waives diligence, presentment, protest and demand and notice of a trusteeprotest, receiverdemand, liquidatordishonor and nonpayment of this Note, custodian or other similar official with respect to it and expressly agrees that this Note, or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; providedpayment hereunder, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall may be extended up from time to an additional 60 daystime and that the holder hereof may accept security for this Note or release security for this Note, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect all without in any way affecting the right hereunder liability of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingMaker hereunder.
Appears in 3 contracts
Sources: Non Recourse Demand Note (Madison River Communications Corp.), Non Recourse Demand Note (Madison River Communications Corp.), Non Recourse Demand Note (Madison River Communications Corp.)
Defaults. The occurrence of any one or more of the following events shall constitute an "“Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):” hereunder:
(a) the Guarantor or the RockGen Lessee under the Facility Lease if Borrower shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable on any Obligation under such Facility Lease this Agreement or this Guaranty within five (5) days after the same shall become due thereunderany other Loan Document; or
(b) the Guarantor or the RockGen Lessee shall fail to make if any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor Loan Party shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership)any term, 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligationcondition, covenant or agreement contained in Article 7 or Article 10 of this Agreement or contained in the Warrant or Rights Agreement; or
(c) if any Loan Party shall fail to comply with any term, condition, covenant or agreement contained in this Agreement other than in Articles 7 or 10 of this Agreement, or in any other Loan Document, and such failure continues for a period of fifteen (15) days after the earlier to occur of (i) the date on which such failure to comply is known or reasonably should have become known to any officer of the RockGen Lessee under any relevant Loan Party, or (ii) the date on which Lenders shall have notified the relevant Loan Party of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trusteesuch failure; provided, however, if that such condition canfifteen (15) day period shall not be remedied within such 30-day period, then apply in the period within case of any failure which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably not capable of being remedied cured at all or within such additional 180-fifteen (15) day period or which has been the subject of a prior failure within a six (6) month period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;; or
(ed) there if any Loan Party shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness cease to be due and payable prior to its Stated MaturitySolvent, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of make an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing , call a meeting of its inability creditors to generally pay its debts as such debts become due; obtain any general financial accommodation, or takes suspend business or if any comparable action case under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding provision of the Bankruptcy Codes including provisions for reorganizations, shall be commenced by or against Borrower (and, in the Guarantor case of any such case commenced against such Loan Party, such case shall not have been dismissed within sixty (60) days) or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of if a trustee, receiver, liquidator, custodian trustee or other similar official with respect to it equivalent officer shall be appointed for all or any substantial part of its property the Collateral of such Loan Party; or
(e) if any representation or warranty contained in this Agreement or any Loan Document, or in any written statement pursuant hereto or thereto, or in any report, financial statement or certificate delivered by any Loan Party to Lenders shall be false, in any material respect, when made; or
(iiif) the winding-up if any federal or liquidation state tax lien is filed of the Guarantor record against any Loan Party, and is not bonded or such Significant Subsidiarydischarged within fifteen (15) days of filing; and such involuntary case or other proceeding or
(g) if Borrower’s independent public accountants shall remain undismissed and unstayed for a period of 60 days;refuse to deliver any financial statement required by this Agreement; or
(h) if a judgment for $100,000 or more shall be entered against any representation or warranty made by the Guarantor herein shall prove to have been incorrect Loan Party in any material action or proceeding and shall not be stayed, vacated, bonded, paid or discharged within fifteen (15) days of entry, except a judgment where the claim is fully covered by insurance (other than the deductible) and the insurance company has accepted liability therefor in writing; or
(i) if any obligation of any Loan Party in respect of any Indebtedness with a then-outstanding principal balance of one hundred thousand dollars ($100,000) or more shall be declared to be or shall become due and payable prior to its stated maturity or such obligation shall not be paid as and when made the same becomes due and payable; or misleading there shall occur any event or condition which constitutes an event of default under any note, mortgage, indenture, instrument, agreement or evidence of such Indebtedness relating to any obligation of any Loan Party in respect of any material respect when made because such Indebtedness the effect of which is to permit the holder or the holders of such note, mortgage, indenture, instrument, agreement or evidence of such Indebtedness, or a trustee, agent or other representative on behalf of such holder or holders, to cause the Indebtedness evidenced thereby to become due prior to its stated maturity; or
(j) upon the happening of any Reportable Event, or if Borrower terminates or withdraws (full or partial) from any Plan, or if a trustee shall be appointed by an appropriate United States District Court or other court or administrative tribunal to administer any Plan, or if the Pension Benefit Guaranty Corporation shall institute proceedings to terminate any Plan or to appoint a trustee to administer any Plan; or
(k) upon the occurrence and continuance of any Material Adverse Effect, which in the sole discretion of the omission Lenders, impairs the Lenders’ security, increases the Lenders’ risks, or impairs any Loan Party’s ability to state perform under this Agreement or under any of the other Loan Documents; or
(l) if any Guarantor purports to terminate its guaranty; or
(m) if, within three (3) Business Days following the exercise of the Warrant, the Borrower fails to duly and validly issue and deliver pursuant to the terms of the Warrant the common stock thereunder, fully paid and non-assessable, without any preemptive rights or rights of first refusal and free and clear of any liens or other encumbrances; or
(n) if the sales of the Borrower and its Subsidiaries, on a material fact and such incorrect consolidated basis, decline by twenty percent (20%) in a fiscal quarter period compared to the prior fiscal quarter period, in each case, for which financial statements are delivered or misleading representation is and continues required to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard delivered to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingLenders.
Appears in 3 contracts
Sources: Loan and Security Agreement (Fat Brands, Inc), Loan and Security Agreement (Fat Brands, Inc), Loan and Security Agreement (Fat Brands, Inc)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event A Party shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order default under this Lease upon the occurrence of any court one or any order, rule or regulation more of any Governmental Entity):the following events:
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail The failure by such Party to make any payment with respect of any amount required to Periodic Rent or the Termination Value be made by such Party hereunder, as and when due, where such failure shall continue for a period of thirty (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (530) days after receipt by such Party of written notice thereof from the same shall become due thereunderother Party; or
(b) the Guarantor The failure by such Party to observe or the RockGen Lessee shall fail to make perform any other amount payable under any Operative Document after the same shall become due thereunder and material covenants, conditions or provisions of this Lease to be observed or performed by such Party, where such failure shall have continued from continue for a period of ten thirty (1030) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor such Party of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trusteeother Party; provided, however, that if the nature of the failure is such that more than thirty (30) days are reasonably required for its cure, then such Party shall not be deemed to be in default if such condition cannot be remedied Party commences such cure within said thirty (30) day period and thereafter diligently prosecutes such 30-day periodcure to completion; or
(c) If by order of a court of competent jurisdiction, then the period within which to remedy such condition a receiver or liquidator or trustee of a Party shall be extended up to an additional 180 daysappointed, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable receiver or liquidator or trustee shall not have been discharged within a period of being remedied within sixty (60) days; or if by decree of such additional 180-day perioda court, a Party shall be adjudicated bankrupt or insolvent or any substantial part of the property of such Party shall have been sequestered, and such decree shall have continued undischarged and unstayed for a period of sixty (260) with respect days after the entry thereof; or if a petition to declare bankruptcy or to reorganize a Party pursuant to any of the provisions of the federal bankruptcy laws or pursuant to any other obligationsimilar state statute applicable to such Party, covenant as now or agreement hereunderhereafter in effect, 30 shall be filed against such Party and shall not be dismissed within sixty (60) days after receipt by the Guarantor of written notice thereof;such filing; or
(ed) there If a Party shall have occurred either (i) file a default by the Guarantor or any Restricted Subsidiary voluntary petition in bankruptcy under any instrument provision of any federal or instruments state bankruptcy law or shall consent to the filing of any bankruptcy or reorganization petition against it under which there is or may be secured or evidenced any Indebtedness similar law; or, without limitation of the Guarantor or any Restricted Subsidiary generality of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (foregoing, if a Party shall file a petition or its foreign currency equivalent) answer or more individually consent seeking relief or assisting in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) seeking relief in a default by the Guarantor or proceeding under any Restricted Subsidiary in the payment when due of any portion of the principal under provisions of the federal bankruptcy laws or pursuant to any other similar state statute applicable to such instrument Party, as now or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or hereafter in the aggregate and is not paideffect, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days an answer admitting the material allegations of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief petition filed against it in such a proceeding; or if a Party shall make an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits or if a Party shall admit in writing its inability to generally pay its debts generally as such debts they become due; or takes any comparable action under any foreign laws relating if a Party shall consent to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trusteereceiver or receivers, receiveror trustee or trustees, liquidator, custodian or other similar official with respect to liquidator or liquidators of it or of all or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingproperty.
Appears in 3 contracts
Sources: Contribution, Conveyance and Assumption Agreement (Phillips 66 Partners Lp), Contribution, Conveyance and Assumption Agreement (Phillips 66 Partners Lp), Contribution, Conveyance and Assumption Agreement
Defaults. The (a) Each of the following events shall constitute an "“Event of Default" ” hereunder (whether any whatever the reason for such event of default and whether it shall be voluntary or involuntary involuntary, or come about or be effected by operation of law law, or be pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entityadministrative or governmental body):
(a1) the Guarantor or the RockGen if Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) pay when due any sum under this Agreement and payable under such Facility Lease failure shall continue for a period of three business days after oral, facsimile, electronic mail or written notice has been given by Lessor to Lessee; (2) if Lessee shall fail to perform any covenant or agreement contained herein, and such failure shall continue for a period of fifteen (15) calendar days after notice thereof shall have been given in writing; (3) if any representation or warranty made by Lessee in this Guaranty within five Agreement or any agreement, document or certificate delivered by the Lessee in connection herewith is or shall become incorrect in any material respect; (4) if Lessee shall operate the Aircraft in violation of any applicable law, regulation, rule or order of any governmental authority having jurisdiction thereof or shall operate the Aircraft BLACKSTONE DRY LEASE - PAGE 6 OF 9 when the insurance required hereunder shall not be in effect; (5) if any proceedings shall be commenced under any bankruptcy, insolvency, reorganization, readjustment of debt, receivership or liquidation law or statute of any jurisdiction; or (6) if any such proceedings shall be instituted against either Party and shall not be withdrawn or terminated within thirty (30) calendar days after the same shall become due thereunder; ortheir commencement.
(b) Upon the Guarantor occurrence of any Event of Default Lessor may, at its option, exercise any or all remedies available at law or in equity, including, without limitation, any or all of the RockGen following remedies, as Lessor in its sole discretion shall elect: (1) by notice in writing to terminate this Agreement immediately, whereupon all rights of the Lessee to the use or possession of the Aircraft or any part thereof shall absolutely cease and terminate but Lessee shall fail to make any other amount payable under any Operative Document after remain liable as hereinafter provided; and thereupon Lessee, if so requested by Lessor, shall at its expense promptly return the Aircraft and Aircraft Documentation as required by this Agreement or Lessor, at its option, may enter upon the premises where the Aircraft or Aircraft Documentation are located and take immediate possession of and remove the same shall become due thereunder by summary proceedings or otherwise. Lessee specifically authorizes Lessor’s entry upon any premises where the Aircraft or Aircraft Documentation may be located for the purpose of, and such failure shall waives any cause of action it may have continued from arising from, a period peaceful retaking of ten the Aircraft or Aircraft Documentation; or (102) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement cause to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any hereunder. Lessee agrees to pay all costs and expenses incurred by Lessor for such performance and acknowledges that such performance by Lessor shall not be deemed to cure said Event of Default.
(c) Lessee shall be liable for all costs, charges and expenses, including reasonable legal fees and disbursements, incurred by Lessor by reason of the Operative Documents, 30 days after receipt by the Guarantor occurrence of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee any Event of Default or the Pass Through Trustee; providedexercise of Lessor’s remedies with respect thereto. No remedy referred to herein is intended to be exclusive, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition but each shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy cumulative and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect in addition to any other obligation, covenant remedy referred to above or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually otherwise available to Lessor at law or in equity. Lessor shall not be deemed to have waived any default, Event of Default or right hereunder unless the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default same is acknowledged in writing by the Guarantor or any Restricted Subsidiary in the payment when due duly authorized representative of Lessor. No waiver by Lessor of any portion default or Event of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding Default hereunder shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder be, or be construed to be, a waiver of any Beneficiary entitled to a payment of any amount payable to it, future or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, subsequent default or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided. The failure or delay of Lessor in exercising any rights granted it hereunder upon any occurrence of any such right upon the continuation or recurrence of any such contingencies or similar contingencies, however, notwithstanding and any single or partial exercise of any particular right by Lessor shall not exhaust the foregoing, no Lease Event same or constitute a waiver of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingany other right provided herein.
Appears in 3 contracts
Sources: Aircraft Dry Lease Agreement (Blackstone Group Inc), Aircraft Dry Lease Agreement (Blackstone Group L.P.), Aircraft Dry Lease Agreement (Blackstone Group L.P.)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease A. It is covenanted and agreed that if either Party shall fail to make perform any payment with respect to Periodic Rent of the covenants or obligations imposed upon it under and by virtue of the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease Agreement or this Guaranty within five Appendix, in addition to its other rights and remedies, the other Party may terminate the Agreement by proceeding as follows:
1) The Party not In default shall cause a written notice to be served on the other Party in default, stating specifically the cause for terminating the Agreement, and declaring it to be the Intention of the Party giving notice to terminate the same; thereupon, the Party in default shall have thirty (530) days after the same service of the aforesaid notice in which to remedy or remove the cause or causes stated in the notice for terminating the Agreement. If within said thirty (30) days the Party in default does so remove and remedy said cause or causes, or fully indemnifies the Party not in default for any and all consequences of such breach, then such notice shall be withdrawn and the Agreement shall continue in full force and effect.
2) In case the Party in default does not remedy and remove the cause or causes, or does not indemnify the Party giving the notice for any and all consequences of such breach, within said period of thirty (30) days, then the Agreement shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document null and void from and after the same shall become due thereunder and such failure shall have continued from a period expiration of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guarantysaid period.
(d3) Any cancellation of the Guarantor shall fail Agreement pursuant to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) the provisions of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect be without prejudice to the Guarantor's guaranty ofobligation of Buyer/Processor to make proper settlement, accounting and distribution of proceeds to ad owners of interest in the proceeds received for Gas delivered to Buyer/Processor thereunder to the time of cancellation, and agreement with respect to, without waiver of any nonmonetary obligation, covenant or agreement remedy to which the Party not in default may be entitled for violations of the RockGen Lessee under Agreement.
B. No waiver by either Seller or Buyer/Processor of any default of the Operative Documentsother under this Agreement shall operate as a waiver of any future default, 30 days after receipt by the Guarantor whether of written notice thereof from the Owner Participantlike or different character or nature, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if nor shall any failure to exercise any right hereunder be considered as a waiver of such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or right in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.future
Appears in 3 contracts
Sources: Gas Purchase and Processing Agreement (Petroleum Development Corp), Gas Purchase and Processing Agreement (Rockies Region 2007 Lp), Gas Purchase and Processing Agreement (Rockies Region 2007 Lp)
Defaults. The following events (a) It shall constitute be an "event of default (“Event of Default" hereunder ”) under this Note and each of the other Loan Documents if (whether i) any principal, interest or other amount of money due under this Note is not paid in full when due, regardless of how such event amount may have become due; or (ii) there shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee occur a Default under the Facility Lease Loan Agreement (as such term “Default” is defined in the Loan Agreement) subject to any applicable notice and cure period contained therein. Upon the occurrence of an Event of Default, Lender shall fail have the rights to make any payment with respect to Periodic Rent or declare the Termination Value (including unpaid principal balance and accrued but unpaid interest on this Note, and all other amounts due hereunder and under the Equity Portion of Termination Value and Debt Portion of Termination Value) when other Loan Documents, at once due and payable under (and upon such Facility Lease or this Guaranty within five (5) days after declaration, the same shall become be at once due thereunder; orand payable), to foreclose any liens and security interests securing payment hereof and to exercise any of its other rights, powers and remedies under this Note, under any other Loan Document, or at law or in equity.
(b) All of the Guarantor or the RockGen Lessee shall fail to make rights, remedies, powers and privileges (together, “Rights”) of Lender and Administrative Agent provided for in this Note and in any other amount Loan Document are cumulative of each other and of any and all other Rights at law or in equity. The resort to any Right shall not prevent the concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall exhaust it, or preclude any other or further exercise thereof, and every Right may be exercised at any time and from time to time. No failure by Lender to exercise, nor delay in exercising any Right, including but not limited to the right to accelerate the maturity of this Note, shall be construed as a waiver of any Event of Default or as a waiver of any Right. Without limiting the generality of the foregoing provisions, the acceptance by Lender from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable under any Operative Document after at the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice time of such failure by the RockGen Lessee and/or the Guarantorpayment, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) constitute a default by waiver of or impair or extinguish the Guarantor right of Lender to accelerate the maturity of this Note or to exercise any Restricted Subsidiary under other Right at the time or at any instrument subsequent time, or instruments under which there is or may be secured or evidenced nullify any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due exercise of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectRight, or (ii) the appointment of constitute a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation waiver of the Guarantor requirement of punctual payment and performance or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;novation in any respect.
(hc) If any representation or warranty made by the Guarantor herein shall prove to have been incorrect holder of this Note retains an attorney in connection with any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) or at maturity or to collect, enforce or defend this Note or any other Loan Document in any lawsuit or in any probate, reorganization, bankruptcy, arbitration or other proceeding, or if Borrower sues any holder in connection with this Note or any other Loan Document and no remedies does not prevail, then Borrower agrees to pay to each such holder, in addition to principal, interest and any other sums owing to Lender hereunder and under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred other Loan Documents, all costs and expenses incurred by such holder in trying to collect this Note or in any such suit or proceeding, including, without limitation, reasonable attorneys’ fees and expenses, investigation costs and all court costs, whether or not suit is continuingfiled hereon, whether before or after the Maturity Date, or whether in connection with bankruptcy, insolvency or appeal, or whether collection is made against Borrower or any guarantor or endorser or any other person primarily or secondarily liable hereunder. Any judgment on this Note shall bear interest at the highest rate allowed by applicable law.
Appears in 3 contracts
Sources: Construction Loan Agreement (Skechers Usa Inc), Construction Loan Agreement (Skechers Usa Inc), Construction Loan Agreement (Skechers Usa Inc)
Defaults. The occurrence of any one or more of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):":
(a) the Guarantor or the RockGen Lessee under the Facility Lease The Company shall fail to make pay (i) any interest due on any Revolving Credit Note, or any other amount payable hereunder (other than a principal payment with respect to Periodic Rent on any Note or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Valuea Reimbursement Obligation) when due and payable under such Facility Lease or this Guaranty within by five (5) days after the same shall become becomes due; or (ii) any principal amount due thereunder; oron any Revolving Credit Note or any Reimbursement Obligation when due;
(b) The Company shall default in the Guarantor performance or the RockGen Lessee shall fail to make observance of any agreement, covenant, condition, provision or term contained in Article V (other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period than section 5.8) or section 6.1 of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicablethis Agreement;
(c) The Guarantor Company shall fail default in the performance or observance of any of the other agreements, covenants, conditions, provisions or terms in this Agreement or any Collateral Document and such default continues for a period of thirty days after written notice thereof is given to comply with its covenants set forth in Section 3.3 (transfer the Company by any of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.the Banks;
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any Any representation or warranty made by the Guarantor Company herein or any certificate delivered pursuant hereto, or any financial statement delivered to any Bank hereunder, shall prove to have been incorrect false in any material respect as of the time when made or misleading in given;
(e) The Company or any material respect Subsidiary shall fail to pay as and when made because due and payable (whether at maturity, by acceleration or otherwise) all or any part of the omission to state a material fact principal of or interest on any indebtedness of or assumed by it (including without limitation the Demand Notes), or of the rentals due under any lease or sublease, or of any other obligation for the payment of money, in each case where such payments aggregate $1,000,000 or more, and such incorrect default shall not be cured within the period or misleading representation is periods of grace, if any, specified in the instruments governing such obligations; or default shall occur under any evidence of, or any indenture, lease, sublease, agreement or other instrument governing such obligations, and continues to be material and unremedied such default shall continue for a period of 30 days after receipt by time sufficient to permit the Guarantor acceleration of written notice thereof; providedthe maturity of any such indebtedness or other obligation or the termination of such lease or sublease, however, that if unless the Company or such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition Subsidiary shall be extended up to an additional 60 dayscontesting such default in good faith by appropriate proceedings;
(f) A final judgment which, so long as together with all other outstanding final judgments against the Guarantor diligently pursues such remedy Company and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to itits Subsidiaries, or performance any of them, exceeds an aggregate of $100,000 shall be entered against the Company or any obligationSubsidiary and shall remain outstanding and unsatisfied, by unbonded, unstayed or uninsured after 60 days from the RockGen Lessee under date of entry thereof;
(g) The Company or any Operative Document to demand prompt payment thereofSubsidiary shall: (i) become insolvent; or (ii) be unable, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee admit in writing its inability to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default)its debts as they mature; provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.or
Appears in 3 contracts
Sources: Credit Agreement (Oshkosh B Gosh Inc), Credit Agreement (Oshkosh B Gosh Inc), Credit Agreement (Oshkosh B Gosh Inc)
Defaults. The Lessee agrees that any one or more of the following events shall constitute an "Event be considered Events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):Default as said term is used herein:
(a) the Guarantor Lessee shall be adjudged an involuntary bankrupt, or the RockGen a decree or order approving, as properly filed, a petition or answer filed against Lessee asking reorganization of Lessee under the Facility Lease Federal bankruptcy laws as now or hereafter amended, or under the laws of any state, shall fail be entered, and any such decree or judgment or order shall not have been vacated or set aside within sixty (60) days from the date of the entry or granting thereof; or
(b) Lessee shall file or admit the jurisdiction of the court and the material allegations contained in any petition in bankruptcy or any petition pursuant or purporting to be pursuant to the Federal bankruptcy laws as now or hereafter amended, or Lessee shall institute any proceeding or shall give its consent to the institution of any proceedings for any relief of Lessee under any bankruptcy or insolvency laws or any laws relating to the relief of 20 debtors, readjustment of indebtedness, reorganization, arrangements, composition or extension; or
(c) Lessee shall make any assignment for the benefit of creditors or shall apply for or consent to the appointment of a receiver for Lessee or any of the property of Lessee; or
(d) The leased premises are levied upon by any revenue officer or similar officer; or
(e) A decree or order appointing a receiver of the property of Lessee shall be made and such decree or order shall not have been vacated or set aside within sixty (60) days from the date of entry or granting thereof; or
(f) Lessee shall abandon the leased premises during the term hereof; or
(g) Lessee shall default in any payment with respect to Periodic of Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) in any other payment required to be made by Lessee hereunder when due as herein provided (all of which other payments shall be deemed 'additional rent' payable hereunder), or shall default under Section 6.2 hereof, and payable under any such Facility Lease or this Guaranty within default shall continue for five (5) days after the same shall become due thereundernotice thereof in writing to Lessee; or
(bh) the Guarantor or the RockGen Lessee shall fail to make contest the validity of any other amount payable under any Operative Document after lien or claimed lien and give security to Lessor to assure payment thereof, or, having commenced to contest the same and having given such security, shall become due thereunder fail to prosecute such contest with diligence, or shall fail to have the same released and satisfy any judgment rendered thereon, and such failure shall have continued from a period of default continues for ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trusteein writing to Lessee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:or
(i) commences a voluntary case;
Lessee shall default in keeping, observing or performing any of the other covenants or agreements herein contained to be kept, observed and performed by Lessee, and such default shall continue for thirty (ii30) consents days after notice thereof in writing to Lessee or shall exist at the entry expiration of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditorsLease term; or
(vj) admits Lessee shall default in writing its inability keeping, observing or performing any covenant or agreement herein contained to generally pay its debts as such debts become due; be kept, observed and performed by Lessee, which default may result in an imminent risk of damage to property (including without limitation the leased premises or takes any comparable action under any foreign laws relating the Improvements thereon) or injury to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidationdeath of persons, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding default shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor cured immediately upon any failure of the RockGen notice thereof to Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Defaultwhich notice may be oral); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.or
Appears in 3 contracts
Sources: Lease Agreement (Spartan Stores Inc), Lease (Spartan Stores Inc), Lease Agreement (Spartan Stores Inc)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Broad River Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Broad River Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Broad River Lessee and the Guarantor of written notice of such failure by the RockGen Broad River Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Broad River Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Broad River Lessee under any of the Operative DocumentsDocuments or the FILOT Lease, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Broad River Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Broad River Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Broad River Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 3 contracts
Sources: Guaranty and Payment Agreement (Calpine Corp), Guaranty and Payment Agreement (Calpine Corp), Guaranty and Payment Agreement (Calpine Corp)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) Upon the Guarantor or occurrence and during the RockGen Lessee continuance of a Default, Administrative Agent on behalf of the Lender and the other Lenders shall have the right to declare the unpaid principal balance and accrued but unpaid interest on this Note, and all other amounts due hereunder and under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when other Loan Documents, at once due and payable under (and upon such Facility Lease or this Guaranty within five (5) days after declaration, the same shall become be at once due thereunder; orand payable), to foreclose any liens and security interests securing payment hereof and to exercise any of its other rights, powers and remedies under this Note, under any other Loan Document, or at Law or in equity.
(b) All of the Guarantor or rights, remedies, powers and privileges (together, “Rights”) of Administrative Agent on behalf of the RockGen Lessee shall fail to make Lender and the other Lenders provided for in this Note and in any other amount payable under Loan Document are cumulative of each other and of any Operative Document after and all other Rights at Law or in equity. The resort to any Right shall not prevent the same concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall become due thereunder exhaust it or preclude any other or further exercise thereof, and such every Right may be exercised at any time and from time to time. No failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee Administrative Agent, Lender and the Guarantor other Lenders to exercise, and no delay in exercising any Right, including, but not limited to, the right to accelerate the maturity of written notice this Note, shall be construed as a waiver of any Default or as a waiver of any Right. Without limiting the generality of the foregoing provisions, the acceptance by Administrative Agent or Lender from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable at the time of such failure by payment, shall not (i) constitute a waiver of or impair or extinguish the RockGen Lessee and/or right of Administrative Agent, Lender and the Guarantorother Lenders to accelerate the maturity of this Note or to exercise any other Right at the time or at any subsequent time, as applicable;or nullify any prior exercise of any such Right, (ii) constitute a waiver of the requirement of punctual payment and performance or a novation in any respect, or (iii) in any way excuse the existence of a Default.
(c) The Guarantor shall fail If Borrower sues any holder in connection with this Note or any other Loan Document and does not prevail, then Borrower agrees to comply with its covenants set forth pay to each such holder to the extent required under Section 4.15 of the Loan Agreement, in Section 3.3 (transfer of RockGen Lessee ownership)addition to principal, 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) interest and any other sums owing to Administrative Agent, Lender and the Guarantor shall fail to perform or observe any covenantother Lenders hereunder and under the other Loan Documents, obligation or agreement to be performed or observed all costs and expenses incurred by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) such holder in any material respectsuch suit or proceeding, which shall continue unremedied for (1) with respect to the Guarantor's guaranty ofincluding attorneys’ fees and expenses, investigation costs and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingcourt costs.
Appears in 3 contracts
Sources: Loan Agreement (KBS Real Estate Investment Trust III, Inc.), Loan Agreement (KBS Real Estate Investment Trust III, Inc.), Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Defaults. The (a) Each of the following events shall constitute an "“Event of Default" ” hereunder (whether any whatever the reason for such event of default and whether it shall be voluntary or involuntary involuntary, or come about or be effected by operation of law law, or be pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entityadministrative or governmental body):
(a1) the Guarantor or the RockGen if Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) pay when due any sum under this Agreement and payable under such Facility Lease failure shall continue for a period of three business days after oral, facsimile, electronic mail or written notice has been given by Lessor to Lessee; (2) if Lessee shall fail to perform any covenant or agreement contained herein, and such failure shall continue for a period of fifteen (15) calendar days after notice thereof shall have been given in writing; (3) if any representation or warranty made by Lessee in this Guaranty within five Agreement or any agreement, document or certificate delivered by the Lessee in connection herewith is or shall become incorrect in any material respect; (4) if Lessee shall operate the Aircraft in violation of any applicable law, regulation, rule or order of any governmental authority having jurisdiction thereof or shall operate the Aircraft when the insurance required hereunder shall not be in effect; (5) if any proceedings shall be commenced under any bankruptcy, insolvency, reorganization, readjustment of debt, receivership or liquidation law or statute of any jurisdiction; or (6) if any such proceedings shall be instituted against either Party and shall not be withdrawn or terminated within thirty (30) calendar days after the same shall become due thereunder; ortheir commencement. BLACKSTONE DRY LEASE - PAGE 6 OF 9
(b) Upon the Guarantor occurrence of any Event of Default Lessor may, at its option, exercise any or all remedies available at law or in equity, including, without limitation, any or all of the RockGen following remedies, as Lessor in its sole discretion shall elect: (1) by notice in writing to terminate this Agreement immediately, whereupon all rights of the Lessee to the use or possession of the Aircraft or any part thereof shall absolutely cease and terminate but Lessee shall fail to make any other amount payable under any Operative Document after remain liable as hereinafter provided; and thereupon Lessee, if so requested by Lessor, shall at its expense promptly return the Aircraft and Aircraft Documentation as required by this Agreement or Lessor, at its option, may enter upon the premises where the Aircraft or Aircraft Documentation are located and take immediate possession of and remove the same shall become due thereunder by summary proceedings or otherwise. Lessee specifically authorizes Lessor’s entry upon any premises where the Aircraft or Aircraft Documentation may be located for the purpose of, and such failure shall waives any cause of action it may have continued from arising from, a period peaceful retaking of ten the Aircraft or Aircraft Documentation; or (102) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement cause to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any hereunder. Lessee agrees to pay all costs and expenses incurred by Lessor for such performance and acknowledges that such performance by Lessor shall not be deemed to cure said Event of Default.
(c) Lessee shall be liable for all costs, charges and expenses, including reasonable legal fees and disbursements, incurred by Lessor by reason of the Operative Documents, 30 days after receipt by the Guarantor occurrence of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee any Event of Default or the Pass Through Trustee; providedexercise of Lessor’s remedies with respect thereto. No remedy referred to herein is intended to be exclusive, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition but each shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy cumulative and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect in addition to any other obligation, covenant remedy referred to above or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually otherwise available to Lessor at law or in equity. Lessor shall not be deemed to have waived any default, Event of Default or right hereunder unless the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default same is acknowledged in writing by the Guarantor or any Restricted Subsidiary in the payment when due duly authorized representative of Lessor. No waiver by Lessor of any portion default or Event of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding Default hereunder shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder be, or be construed to be, a waiver of any Beneficiary entitled to a payment of any amount payable to it, future or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, subsequent default or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided. The failure or delay of Lessor in exercising any rights granted it hereunder upon any occurrence of any such right upon the continuation or recurrence of any such contingencies or similar contingencies, however, notwithstanding and any single or partial exercise of any particular right by Lessor shall not exhaust the foregoing, no Lease Event same or constitute a waiver of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingany other right provided herein.
Appears in 3 contracts
Sources: Aircraft Dry Lease Agreement (Blackstone Inc.), Aircraft Dry Lease Agreement (Blackstone Group Inc), Aircraft Dry Lease Agreement (Blackstone Group Inc)
Defaults. The If any of the following events ("Defaults") shall constitute an "Event occur:
(A) Any Borrower fails to pay any of Default" hereunder its Liabilities when such Liabilities are due or are declared due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise);
(B) Any Borrower (i) fails or neglects to perform, keep or observe any of its covenants, conditions or agreements contained in any of the subsections of this Agreement or any of the other Financing Agreements other than the provisions in Subsection 3.1 of this Agreement which require such Borrower to deliver a Monthly Report by a particular date, Subsections 7.1 (other than Subsections 7.1(E) or (G)), 7.3 or 7.4 of this Agreement, (ii) fails or neglects to deliver a Monthly Report when required pursuant to Subsection 3.1 of this Agreement and such failure shall continue for two consecutive Business Days, (iii) fails or neglects to perform, keep or observe any covenants, conditions or agreements contained in Subsection 7.1 (other than Subsections 7.1(E) or 7.1(G)) of this Agreement and such failure shall continue for five consecutive Business Days or (iv) fails or neglects to perform, keep or observe any of the covenants, conditions or agreements contained in Subsections 7.3 or 7.4 of this Agreement and such failure shall continue for thirty (30) consecutive days, provided that such 30-day grace period shall not apply and a Default shall be deemed to have occurred promptly upon such breach if (x) such breach cannot, in Agent's reasonable determination, be cured by such Borrower during such period, or (y) such breach shall be deemed by Agent (in its reasonable discretion) to have a material adverse effect on the Collateral (or Agent's or the Lenders' interest or rights therein or with respect thereto), the Current Asset Base of any Borrower or the other rights of Agent or the Lenders under this Agreement or any other Financing Agreement;
(C) any warranty or representation now or hereafter made by any Borrower or any Subsidiary of a Borrower is untrue or incorrect in any material respect when made, or any schedule, certificate, statement, report, financial data, notice, or writing furnished at any time by or on behalf of such Borrower or such Subsidiary to any of Agent, the Issuing Bank and the Lenders is untrue or incorrect in any material respect, on the date as of which the facts set forth therein are stated or certified or any of the foregoing omits to state a fact necessary to make the statements therein contained not misleading in any material respect;
(D) a final judgment or final order requiring payment in excess of $1,000,000 with respect to Rail, or $250,000 with respect to Deco, shall be rendered against such Borrower and such judgment or order shall remain unsatisfied or undischarged and in effect for forty (40) consecutive days without a stay of enforcement or execution, provided that this Subsection 9.1(D) shall not apply to any judgment for which such Borrower is fully insured (except for normal deductibles in connection therewith) and with respect to which the insurer has assumed the defense and is not defending under reservation of right and with respect to which Agent reasonably believes the insurer will pay the full amount thereof (except for normal deductibles in connection therewith);
(E) a notice of Lien, levy, or assessment is filed or recorded with respect to all or a substantial part of the assets of any Borrower by the United States, or any department, agency or instrumentality thereof, or by any state, county, municipality or other governmental agency or any taxes or debts owing at any time or times hereafter to any one or more of them become a Lien upon all or a substantial part of the Collateral or the assets of such Borrower, and such Lien, levy or assessment is not discharged or released within thirty (30) days of the notice or attachment thereof, provided that this Subsection 9.1(E) shall not apply to Liens, levies or assessments which relate to current taxes not yet due and payable or Permitted Liens;
(F) there shall occur any loss, theft, substantial damage or destruction of any item or items of any Borrower's assets for which such Borrower is not fully insured (a "Loss"), if the amount of such Loss not fully covered by insurance (including any deductible in connection therewith), together with the amount of all other Losses incurred by all Borrowers not fully covered by insurance (including any deductibles in connection therewith) occurring in the same Fiscal Year, exceeds $1,000,000;
(G) all or any part of any Borrower's assets is attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes within the possession of any receiver, trustee, custodian or assignee for the benefit of creditors and on or before the forty-fifth (45th) day thereafter such assets are not returned to such Borrower and/or such writ, distress warrant or levy is not dismissed, stayed or lifted if the amount of such Collateral or assets, together with any other such Collateral and assets that is so attached, seized, subjected to writ or distress warrant or levied upon, exceeds $1,000,000 at any time;
(H) a proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or statute is filed (i) against any Borrower and an adjudication or appointment is made or order for relief is entered, or such proceeding remains undismissed for a period in excess of forty-five (45) days, or (ii) by any Borrower or any Borrower makes an assignment for the benefit of creditors or any Borrower takes any corporate action to authorize any of the foregoing;
(I) a proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or statute is filed (i) against any Subsidiary of any Borrower and an adjudication or appointment is made or order for relief is entered, or such proceeding remains undismissed for a period in excess of forty-five (45) days, or (ii) any Subsidiary of any Borrower makes an assignment for the benefit of creditors or any such event shall be voluntary Subsidiary takes any action to authorize any of the foregoing;
(J) Any Borrower or involuntary any Subsidiary of a Borrower voluntarily or come about involuntarily dissolves or be effected is dissolved, terminates or is terminated (except for a liquidation or dissolution of a Subsidiary permitted by operation Subsection 7.3 hereof);
(K) Any Borrower or any Subsidiary of law a Borrower becomes insolvent or pursuant fails generally to pay its debts as they become due;
(L) Any Borrower is enjoined, restrained, or in compliance with any judgment, decree or way prevented by the order of any court or any order, rule administrative or regulation regulatory agency from conducting all or any material part of any Governmental Entity):its business affairs;
(aM) a breach by any Borrower shall occur under any material agreement, document or instrument (other than an agreement, document or instrument evidencing the Guarantor lending of money), whether heretofore, now or hereafter existing between such Borrower and any other Person, and such breach involves an exposure to such Borrower, or could give rise to liability of such Borrower, in excess of $1,000,000 with respect to Rail, or $250,000 with respect to Deco, and the RockGen Lessee under same continues unwaived for more than forty-five (45) days after such breach first occurs;
(N) as to more than $500,000 individually, or $1,500,000 in the Facility Lease aggregate for all Borrowers in indebtedness at any one time, (i) any Borrower shall fail to make any payment with respect to Periodic Rent due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) on any obligation for borrowed money (including, without limitation, Subordinated Debt) other than the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder Liabilities and such failure shall have continued from a period of ten continue after the applicable grace period, if any, specified in the agreement or instrument relating to such indebtedness; (10ii) Business Days any other default under any agreement or instrument relating to any such indebtedness (including, without limitation, Subordinated Debt), or any other event, shall occur and shall continue after receipt by the RockGen Lessee and applicable grace period, if any, specified in such agreement or instrument if the Guarantor of written notice effect of such failure default or event is to accelerate, or to permit the acceleration of, the maturity of such indebtedness; or (iii) any such indebtedness (including, without limitation, Subordinated Debt) shall be declared to be due and payable or required to be prepaid (other than, with respect to indebtedness other than the Subordinated Debt, by a regularly scheduled required prepayment) prior to the RockGen Lessee and/or the Guarantor, as applicablestated maturity thereof;
(cO) The Guarantor a material and adverse change shall occur (i) in the present or reasonably foreseeable prospective operations or financial condition of Rail or in the value of any material portion of the Collateral, or (ii) which materially impairs the ability of Rail to perform its obligations under this Agreement and the other Financing Agreements, in each case as determined by Agent;
(P) the plan administrator of any Benefit Plan applies under Section 412(d) of the Internal Revenue Code for a waiver of the minimum funding standards of Section 412(a) of the Internal Revenue Code and Agent in good faith believes that the approval of such waiver could subject any Borrower, any of its Subsidiaries or an ERISA Affiliate of such Borrower to liability in excess of $1,000,000;
(Q) a Termination Event occurs which Agent in good faith believes could individually, or together with any other Termination Events subject any Borrower, any of its Subsidiaries or an ERISA Affiliate of such Borrower to liability in excess of $1,000,000;
(R) a Change in Control shall occur;
(S) any guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership)the terms of, 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall otherwise fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect toits obligations under, any nonmonetary obligation, covenant or agreement guaranty of the RockGen Lessee under Liabilities or any security or similar agreement relating thereto or shall take any action to disaffirm any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal obligations under any such instrument guaranty or instrumentsagreement or any such guaranty or agreement shall cease to be valid, and such unpaid portion exceeds $50,000,000 (enforceable or its foreign currency equivalent) individually or in of effect without the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days prior written consent of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) Agent and the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditorsLenders; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 2 contracts
Sources: Loan and Security Agreement (Abc Rail Products Corp), Loan and Security Agreement (Abc Rail Products Corp)
Defaults. The following events shall constitute an "Event of Default" hereunder 12.1 In the event that (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(ai) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make pay the Base Rent or any other amount payable under Amount Due for more than ten (10) days after its due date, or (ii) Lessee shall fail to comply with any Operative Document after of the same shall become due thereunder terms, covenants, conditions, or agreements herein contained or any of the rules and regulations now or hereafter established for the government of the Building and such failure to comply continues for thirty (30) days after Lessor's written notice to Lessee thereof, or (iii) Lessee shall fail for more than thirty (30) days after written notice thereof from Lessor to Lessee to comply (or fail to diligently pursue within thirty (30) days compliance which cannot reasonably be completed with such thirty (30) day period and within sixty (60) days comply with) with any term, provision, condition or covenant of any other agreement between Lessor and Lessee; then Lessor shall have continued from a period the option, but not the obligation, to do any one or more of the following in addition to, and not in limitation of, any other remedy permitted by law, in equity or by this Lease:
12.1.1 Terminate this Lease, in which event Lessee shall surrender the Premises to Lessor immediately upon expiration of ten (10) Business Days after receipt by days from the RockGen date of the service upon Lessee and the Guarantor of written notice to that effect, without any further notice or demand. In the event Lessor shall become entitled to the possession of the Premises by any termination of this Lease herein provided, and Lessee shall refuse to surrender or deliver up possession of the Premises after the service of such failure notice, then Lessor may, without further notice or demand, enter into and upon the Premises, or any part thereof, and take possession of and repossess the Premises as Lessor's former estate, and expel, remove, and put out of possession Lessee and its effects, using such help, assistance and force in so doing as may be needful and proper, without being liable for prosecution or damages therefor, and without prejudice to any remedy allowed by law available in such cases. Lessee shall indemnify Lessor for all loss, cost, expense, and damage which Lessor may suffer by reason of the RockGen Lessee and/or termination, whether through inability to relet the GuarantorPremises, or through decrease in rent or otherwise. In the event of such termination, Lessor may, at its option, recover forthwith as applicable;
damages a sum of money equal to the total of (a) the cost of recovering the Premises (including, without limitation, attorneys' fees and cost of suit), (b) the unpaid rent earned at the time of termination, plus late charges and interest thereon at the rate specified in paragraph 2.2 hereof, (c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 the present value (transfer discounted at the rate of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty8% per annum) of this Guaranty.
the balance of the rent for the remainder of the Lease Term less the present value (d) discounted at the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (bsame rate) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement fair market rental value of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day Premises for said period, and (2d) any other sum of money and damages owed by Lessee to Lessor.
12.1.2 Without terminating this Lease, retake possession of the Premises and rent the Premises, or any part thereof, for such term or terms and for such rent and upon such conditions as Lessor may, in its sole discretion, think best, making such changes, improvements, alterations, and repairs to the Premises as may be required. All rent received by Lessor from any reletting shall be applied first to the payment of any indebtedness other than rent due hereunder from Lessee; second, to the payment of any costs and expenses of the reletting, including but not limited to brokerage fees, attorneys' fees and costs of such changes, improvements, alterations, and repairs; third, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Lessor and applied in payment of future rent or damage as they may become due and payable hereunder. If the rent received from the reletting during the Lease Term is at any time insufficient to cover the costs, expenses, and payments enumerated above, Lessee shall pay any deficiency to Lessor, as often as it shall arise, on demand.
12.1.3 Correct or cure the default and recover any amount expended in so doing, together with respect interest thereon until paid.
12.1.4 Recover any and all costs incurred by Lessor resulting directly, indirectly, proximately, or remotely from the default, including but not limited to reasonable attorneys' fees.
12.2 In addition to any other obligationrights which Lessor may have, covenant Lessor, in person or agreement hereunderby agent, 30 days after receipt may enter upon the Premises and take possession of all or any part of Lessee's property in the Premises, and may sell all or any part of such property at a public or private sale, in one or successive sales, with or without notice, to the highest bidder for cash, and, on behalf of Lessee, sell and convey all or part of the property to the highest bidder, delivering to the highest bidder all of Lessee's title and interest in the property sold to him. The proceeds of the sale of the property shall be applied by Lessor toward the Guarantor reasonable costs and expenses of written notice thereof;the sale, including, without limitation, attorneys' fees, and then toward the payment of all sums then due by Lessee to Lessor under the terms of this Lease. Any excess remaining shall be paid to Lessee or any other person entitled thereto by law. Such sale shall bar Lessee's right of redemption.
(e) there shall have occurred either (i) 12.3 In the event of a default or threatened default under this Lease by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated MaturityLessee, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding Lessor shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to itall equitable remedies, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubtincluding, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); providedlimitation, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) injunction and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingspecific performance.
Appears in 2 contracts
Defaults. The following events shall constitute an "An Event of Default" hereunder Default shall occur if: (whether any such event i) the Company shall be voluntary or involuntary or come about or be effected by operation -------- default in the payment of law or pursuant to or in compliance with any judgment, decree or order the principal of any court or any orderinstallment of interest on this Note, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value when and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after as the same shall become due thereunder; or
and payable, whether at maturity, on demand, on a date fixed for payment thereof, at a date fixed for prepayment, by acceleration or otherwise, (bii) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor Company shall fail to perform or observe any covenant, obligation or agreement contained herein and the Company has not remedied such default within fifteen (15) days after notice of default has been given by the Investor to the Company, (iii) an involuntary proceeding shall be performed commenced or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to an involuntary petition shall be filed in clauses a court of competent jurisdiction seeking (a) relief in respect of the Company, or of a substantial part of its property or assets, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal or state bankruptcy, insolvency, receivership or similar law, (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it receiver, trustee, custodian, sequestrator, conservator or similar official for the Company, or for all or substantially all a substantial part of its property;
property or assets, or (c) the winding up or liquidation of the Company, and such proceeding or petition shall continue undismissed for 60 days, or any order or decree approving or ordering any of the foregoing shall be entered or (iv) makes the Company shall (a) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal or state bankruptcy, insolvency, receivership or similar law, (b) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described herein, (c) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (e) make a general assignment for the benefit of its creditors; or
, (vf) admits become unable, admit in writing its inability or fail generally to generally pay its debts as such debts they become due; or takes any comparable action under any foreign laws relating to insolvency;
, (g) an involuntary case or other proceeding shall be commenced against suspend the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part operation of its property business or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) take any representation or warranty made by action for the Guarantor herein shall prove to have been incorrect in purpose of effecting any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Webb Interactive Services Inc), Pledge and Security Agreement (Webb Interactive Services Inc)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) It shall be a default ("DEFAULT") under this Note and each of the Guarantor other Loan Documents if, subject to the grace periods provided in the Credit Agreement or the RockGen Lessee other Loan Documents, (i) any principal, interest or other amount of money due under this Note is not paid in full when due, regardless of how such amount may have become due; (ii) any covenant, agreement, condition, representation or warranty herein or in any other Loan Documents is not fully and timely performed, observed or kept; or (iii) there shall occur any default or event of default under the Facility Lease Mortgage or any other Loan Document. Upon the occurrence and during the continuation of a Default, Administrative Agent on behalf of the Lenders shall fail have the rights to make any payment with respect to Periodic Rent or declare the Termination Value (including unpaid principal balance and accrued but unpaid interest on this Note, and all other amounts due hereunder and under the Equity Portion of Termination Value and Debt Portion of Termination Value) when other Loan Documents, at once due and payable under (and upon such Facility Lease or this Guaranty within five (5) days after declaration, the same shall become be at once due thereunder; orand payable), to foreclose any liens and security interests securing payment hereof and to exercise any of its other rights, powers and remedies under this Note, under any other Loan Document, or at Law or in equity.
(b) All of the Guarantor or rights, remedies, powers and privileges (together, "RIGHTS") of Administrative Agent on behalf of the RockGen Lessee shall fail to make Lenders provided for in this Note and in any other amount Loan Document are cumulative of each other and of any and all other Rights at Law or in equity. The resort to any Right shall not prevent the concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall exhaust it, or preclude any other or further exercise thereof, and every Right may be exercised at any time and from time to time. No failure by Administrative Agent or LenderS to exercise, nor delay in exercising any Right, including but not limited to the right to accelerate the maturity of this Note, shall be construed as a waiver of any Default or as a waiver of any Right. Without limiting the generality of the foregoing provisions, the acceptance by Lender from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable under any Operative Document after at the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice time of such failure by the RockGen Lessee and/or the Guarantorpayment, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) constitute a default by waiver of or impair or extinguish the Guarantor right of Administrative Agent or Lenders to accelerate the maturity of this Note or to exercise any Restricted Subsidiary under other Right at the time or at any instrument subsequent time, or instruments under which there is or may be secured or evidenced nullify any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due exercise of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectRight, or (ii) constitute a waiver of the appointment requirement of punctual payment and performance or a trusteenovation in any respect.
(c) If any holder of this Note retains an attorney in connection with any Default or at maturity or to collect, receiverenforce or defend this Note or any other Loan Document in any lawsuit or in any probate, liquidatorreorganization, custodian bankruptcy, arbitration or other similar official proceeding, or if Borrower sues any holder in connection with respect to it this Note or any substantial part of its property other Loan Document and does not prevail, then Borrower agrees to pay to each such holder, in addition to principal, interest and any other sums owing to Lenders hereunder and under the other Loan Documents, all costs and expenses reasonably incurred by such holder in trying to collect this Note or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made such suit or misleading in any material respect when made because of proceeding, including, without limitation, reasonable attorneys' fees and expenses, investigation costs and all court costs, whether or not suit is filed hereon, whether before or after the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to itMaturity Date, or performance of any obligationwhether in connection with bankruptcy, by the RockGen Lessee under any Operative Document to demand prompt payment thereofinsolvency or appeal, or performance thereof, by the Guarantor immediately upon whether collection is made against Borrower or any failure of the RockGen Lessee to pay guarantor or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of endorser or any cure other Person primarily or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingsecondarily liable hereunder.
Appears in 2 contracts
Sources: Credit Agreement (Behringer Harvard Reit I Inc), Credit Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
Defaults. The Any of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):a default under this Agreement:
(a) the Guarantor or the RockGen Lessee under the Facility Lease Borrower shall fail to make pay, within 5 days of when due, any payment with respect amount due under the Note or other amount payable to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable City under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; orAgreement;
(b) the Guarantor or the RockGen Lessee Borrower shall fail to make observe or perform any other amount payable under any Operative Document covenant or agreement contained in this Agreement or associated loan documents such as the Promissory Note and Security agreements, for 10 days after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure thereof has been given to Borrower by the RockGen Lessee and/or the Guarantor, as applicableCity;
(c) The Guarantor shall fail to comply with its covenants set forth Borrower uses the Loan Proceeds for purposes other than those stated in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.Agreement;
(d) ▇▇▇▇▇▇▇▇ has not met the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to Deadline described in clauses (a) or (b) Section 2.3.5 of this Section 7.1Agreement.
(e) Any representation, warranty, certificate or statement made by Borrower in this Agreement, including any Exhibits hereto, or in any certificate, report, financial statement or other document delivered pursuant to this Agreement or as part of the application to the City to enter into this Agreement shall prove to have been incorrect when made in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor A default shall occur with respect to any indebtedness of Borrower for borrowed money or with respect to any Significant Subsidiary pursuant material agreement or instrument to or within the meaning of any Bankruptcy Law:
(i) commences which Borrower is a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvencyparty;
(g) an involuntary Borrower shall fail to observe or perform any covenant or agreement contained in any Security Document or a default shall occur under any Security Document;
(h) Borrower shall commence a voluntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it itself or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, effect or (ii) seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to of it or any substantial part of its property property, or (iii) shall consent to any such relief or to the winding-up appointment of or liquidation taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the Guarantor foregoing;
(i) An involuntary case or such Significant Subsidiary; other proceeding shall be commenced against Borrower seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding proceedings shall remain undismissed and unstayed for a period of 60 days; or an order for relief shall be entered against Borrower under the federal bankruptcy laws as now or hereafter in effect;
(hj) There shall be entered against Borrower one or more judgments or decrees in excess of $10,000 in the aggregate at any representation time outstanding, excluding judgments or warranty made decrees which have been vacated, discharged, stayed or bonded pending appeal within 30 days from entry thereof and judgments to the extent covered by insurance;
(k) Borrower ceases the conduct of active trade or business in the City for any reason, including, but not limited to, fire or other casualty;
(l) Borrower moves from the Property or sells any of the items covered by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingSecurity Agreement.
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) It shall be a default ("Default") under this Note and each of the Guarantor other Loan Documents if (i) any principal, interest or other amount of money due under this Note is not paid in full when due, in accordance with the RockGen Lessee terms and conditions of the Loan Agreement, regardless of how such amount may have become due; (ii) any covenant, agreement, condition, representation or warranty herein is not fully and timely performed, observed or kept; or (iii) there shall occur any default or event of default under the Facility Lease Loan Agreement or any other Loan Document, which is not cured pursuant to the terms and provisions therein. Subject to the terms of the Subordination Agreement, upon the occurrence of a Default, Lender shall fail have any and all rights and remedies set forth in the Loan Agreement, including without limitation the right (A) to make any payment declare in accordance with respect to Periodic Rent or the Termination Value (including Loan Agreement the Equity Portion of Termination Value unpaid principal balance and Debt Portion of Termination Value) when accrued but unpaid interest on this Note, and all other amounts due hereunder and under the other Loan Documents, at once due and payable under (upon such Facility Lease or this Guaranty within five (5) days after declaration, the same shall become be at once due thereunder; orand payable), (B) to foreclose any liens and security interests securing payment thereof and (C) to exercise any of its other rights, powers and remedies under this Note, under any other Loan Document, or at law or in equity.
(b) All of the Guarantor or the RockGen Lessee shall fail to make Rights of Lender provided for in this Note and in any other amount Loan Document are cumulative of each other and of any and all other Rights at law or in equity. The resort to any Right shall not prevent the concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall exhaust it, or preclude any other or further exercise thereof, and every Right may be exercised, subject to the terms of the Subordination Agreement, at any time and from time to time. No failure by Lender to exercise, nor delay in exercising any Right, including but not limited to the right to accelerate the maturity of this Note, shall be construed as a waiver of any Default or as a waiver of any Right. Without limiting the generality of the foregoing provisions, the acceptance by Lender from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable under any Operative Document after at the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice time of such failure by the RockGen Lessee and/or the Guarantorpayment, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) constitute a default by waiver of or impair or extinguish the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness right of Lender to accelerate the maturity of this Note or, subject to the terms of the Guarantor Subordination Agreement, to exercise any other Right at the time or at any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (subsequent time, or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable nullify any prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due exercise of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectRight, or (ii) constitute a waiver of the appointment requirement of punctual payment and performance or a trusteenovation in any respect.
(c) If any holder of this Note retains an attorney in connection with any Default or at maturity of this Note or to collect, receiverenforce or defend this Note or any other Loan Document in any lawsuit or in any probate, liquidatorreorganization, custodian bankruptcy, arbitration or other similar official proceeding, or if Borrower sues any holder in connection with respect to it this Note or any substantial part of its property other Loan Document and does not prevail, then Borrower agrees to pay to each such holder, in addition to principal, interest and any other sums owing to Lender hereunder and under the other Loan Documents, all costs and expenses incurred by such holder in trying to collect this Note or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made such suit or misleading in any material respect when made because of proceeding, including, without limitation, attorneys' fees and expenses, investigation costs and all court costs, whether or not suit is filed hereon, whether before or after the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to itMaturity Date, or performance of any obligationwhether in connection with bankruptcy, by the RockGen Lessee under any Operative Document to demand prompt payment thereofinsolvency or appeal, or performance thereof, by the Guarantor immediately upon whether collection is made against Borrower or any failure of the RockGen Lessee to pay guarantor or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of endorser or any cure other person primarily or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingsecondarily liable hereunder.
Appears in 2 contracts
Sources: Loan and Security Agreement (Signature Eyewear Inc), Loan and Security Agreement (Signature Eyewear Inc)
Defaults. The (i) Each of the following events shall constitute an "“Event of Default" ” hereunder (whatever the reason and whether any such event it shall be voluntary or involuntary involuntary, or come about or be effected by operation of law law, or be pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
administrative or governmental body): (aA) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen if Lessee shall fail to make pay when due any other amount payable sum under any Operative Document after the same shall become due thereunder this Agreement and such failure shall have continued from continue for a period of ten fifteen (1015) Business Days business days after receipt by the RockGen Lessee and the Guarantor of oral, facsimile, or written notice of such failure has been given by the RockGen Lessor to Lessee; (B) if Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation covenant or agreement to be performed contained herein, and such failure shall continue for a period of fifteen (15) days after notice thereof shall have been given in writing; (C) if any representation or observed warranty made by it under Lessee in this Agreement or any Calpine Document (other than any covenantagreement, obligation document or agreement referred to certificate delivered by Lessee in clauses (a) connection herewith is or (b) of this Section 7.1) shall become incorrect in any material respect; (D) if Lessee shall operate the Aircraft in violation of any applicable law, which regulation, rule or order of any governmental authority having jurisdiction thereof or shall continue unremedied for operate the Aircraft when the insurance required hereunder shall not be in effect; (1E) with respect if any proceedings shall be commenced under any bankruptcy, insolvency, reorganization, readjustment of debt, receivership or liquidation law or statute of any jurisdiction; or (F) if any such proceedings shall be instituted against either party and shall not be withdrawn or terminated within thirty (30) days after their commencement.
(ii) Upon the occurrence of any Event of Default, the non-defaulting party may, at its option, exercise any or all remedies available at law or in equity, including, without limitation, any or all of the following remedies, as such non-defaulting party in its sole discretion shall elect: (A) by notice in writing, terminate this Agreement immediately, whereupon all rights of Lessee to the Guarantor's guaranty use or possession of the Aircraft or any part thereof shall absolutely cease and terminate but Lessee shall remain liable as hereinafter provided; and thereupon Lessee, if so requested by Lessor, shall at its expense promptly return the Aircraft as required by this Agreement or Lessor, at its option, may enter upon the premises where the Aircraft is located and take immediate possession of and remove the same by summary proceedings or otherwise. Lessee specifically authorizes Lessor’s entry upon any premises where the Aircraft may be located for the purpose of, and agreement with respect towaives any cause of action it may have arising from, a peaceful retaking of the Aircraft; or (B) perform or cause to be performed any nonmonetary obligation, covenant or agreement of the RockGen defaulting party hereunder. In the event Lessee under any of is the Operative Documentsdefaulting party, 30 days after receipt Lessee agrees to pay all costs and expenses incurred by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if Lessor for such condition canperformance and acknowledges that such performance by Lessor shall not be remedied within such 30-day period, then the period within which deemed to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable cure said Event of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;Default.
(iii) consents to the appointment of a Custodian of it or Lessee shall be liable for all costs, charges and expenses, including reasonable legal fees and disbursements, incurred by Lessor by reason of the occurrence of any Event of Default, for which Lessee is the defaulting party, or substantially all the exercise of its property;
(iv) makes a general assignment for Lessor’s remedies with respect thereto. No remedy referred to herein is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available at law or in equity. Lessor shall not be deemed to have waived any default, Event of Default or right hereunder unless the benefit of its creditors; or
(v) admits same is acknowledged in writing its inability to generally pay its debts as such debts become due; by a duly authorized representative of Lessor. No waiver by Lessor of any default or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding Event of Default hereunder shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder be, or be construed to be, a waiver of any Beneficiary entitled to a payment of any amount payable to it, future or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, subsequent default or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided. The failure or delay of Lessor in exercising any rights granted it hereunder upon any occurrence of any such right upon the continuation or recurrence of any such contingencies or similar contingencies, however, notwithstanding and any single or partial exercise of any particular right by Lessor shall not exhaust the foregoing, no Lease Event same or constitute a waiver of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingany other right provided herein.
Appears in 2 contracts
Sources: Aircraft Dry Lease Agreement (Domo, Inc.), Aircraft Dry Lease Agreement (Domo, Inc.)
Defaults. The following events shall constitute an "With respect to any Default or Event of Default" hereunder (whether any such event shall be voluntary , the words “exists”, “is continuing” or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment similar expressions with respect to Periodic Rent thereto shall mean that the Default or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and has not yet been cured or waived. If, prior to the taking of any action under Section 11.12 (or the occurrence of any Event of Default under Section 11.5), any Default or Event of Default occurs due to (a) the failure by any Credit Party to take any action by a specified time, such Default or Event of Default shall be deemed to have been cured at the time, if any, that the applicable Credit Party takes such action or (b) the taking of any action by any Credit Party that is not then permitted by the terms of this Agreement or any other Credit Document, such Default or Event of Default shall be deemed to be cured on the earlier to occur of (x) the date on which such action would be permitted at such time to be taken under this Agreement and the other Credit Documents pursuant to an applicable amendment or waiver permitting such action and (y) the date on which such action is unwound or otherwise modified to the extent necessary for such revised action to be permitted at such time by this Agreement and the other Credit Documents; provided that, subject in all respects to subsection (iv) of this Section 1.18, an Event of Default resulting from the failure to deliver a notice pursuant to Section 9.1(e)(i) shall cease to exist and be cured in all respects if the Default or Event of Default giving rise to such notice requirement shall have ceased to exist and/or be cured. Notwithstanding anything to the contrary in this Section 1.18, an Event of Default (the “Initial Default”) may not be cured pursuant to this Section 1.18:
(i) if the taking of any action by any Credit Party or Restricted Subsidiary of a Credit Party that is not permitted during, and as a result of, the continuance of such Initial Default directly results in the cure of such Initial Default and the applicable Credit Party or Restricted Subsidiary had actual knowledge at the time of taking any such action that the Initial Default had occurred and was continuing,
(ii) in the case of an Event of Default under Section 11.7, 11.8 or 11.9 that directly results in material impairment of the rights and remedies of the Lenders, Collateral Agent and Administrative Agent under the Credit Documents and that is incapable of being cured,
(iii) in the case of an Event of Default under Section 11.3 arising due to the failure to perform or observe Section 9.3 that directly results in a material adverse effect on the ability of the Borrower and the other Credit Parties (taken as a whole) to perform their respective payment obligations under any Credit Document to which the Borrower or any of the other Credit Parties is a party,
(iv) in the case of an Initial Default for which (A) the Borrower failed to give notice to the Agent and the Lenders of such Initial Default in accordance with Section 9.1(e)(i) of this Agreement and (B) the Borrower had actual knowledge of such failure to give such notice, or
(v) if the Initial Default had a Material Adverse Effect.
Appears in 2 contracts
Sources: Credit Agreement (Skillsoft Corp.), Credit Agreement (Skillsoft Corp.)
Defaults. The If any of the following events shall constitute (herein called an "Event of Default" hereunder (whether any such event ") shall occur and be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):continuing:
(a) If the Guarantor Company shall default in the payment (whether or not such payment is prohibited under Article 5 hereof) of (i) any part of the RockGen Lessee under the Facility Lease shall fail to make principal on any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) Convertible Note, when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor and payable, whether at maturity or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) acceleration or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectotherwise, or (ii) the appointment of a trusteeinterest on any Convertible Note, receiverwhen the same shall become due and payable, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding default in the payment of interest shall remain undismissed and unstayed have continued for a period of 60 fifteen (15) days;
(hb) If the Company shall default in the performance of any agreement or covenant contained in this Agreement or the Convertible Notes and such default shall continue for thirty (30) days; or
(c) If any representation or warranty made by the Guarantor Company herein or any certificate delivered by the Company pursuant hereto shall prove to have been incorrect in any material respect when made made; or
(d) If (i) the Company shall fail to make any payment in respect of any Indebtedness when due or misleading within any applicable grace period; or (ii) any other event of default, as defined in any material respect when made because indenture or material instrument evidencing or under which there is at the time outstanding any Indebtedness of the omission Company, shall occur which (1) results in the acceleration of the maturity of such Indebtedness or (2) enables (or, with the giving of notice, would enable) the holder of such Indebtedness or any person acting on such holder's behalf to state accelerate the maturity thereof if, in the case of subclause (2) hereof, such event or condition has been in existence for 180 days without being cured or waived; provided, that, the aggregate principal amount of the Indebtedness referred to in clause (i) or (ii) (together with any other defaulted Indebtedness) exceeds $1,000,000; or
(e) If a material fact final judgment which, either alone or together with other outstanding final judgments against the Company and its Subsidiaries, exceeds an aggregate of $1,000,000 shall be rendered against the Company or any Subsidiary and such incorrect judgment shall have continued undischarged or misleading representation is and continues unstayed for sixty (60) days after entry thereof; or
(f) If the Company or any Subsidiary shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts; or if the Company or any Subsidiary shall suffer the appointment of a receiver or trustee for it or substantially all of its assets and, if appointed without its consent, not to be material and unremedied for a period discharged or stayed within sixty (60) days; or if the Company or any Subsidiary shall suffer proceedings under any law relating to bankruptcy, insolvency or the reorganization or relief of 30 debtors to be instituted by or against it, and, if contested by it, not to be dismissed or stayed within sixty (60) days; or if the Company or any Subsidiary shall fail generally to pay its debts as they become due; or if the Company or any Subsidiary shall suffer any writ of attachment or execution or any similar process to be issued or levied against it or any significant part of its property with respect to claims in excess of $1,000,000, which is not released, stayed, bonded or vacated within sixty (60) days after receipt its issue or levy; or if the Company or any Subsidiary takes corporate action in furtherance of any of the aforesaid purposes or conditions; then and in each such event the holders of forty percent (40%) or more in aggregate principal amount of the Convertible Notes then outstanding may at any time (unless all defaults shall theretofore have been remedied) at its or their option, by the Guarantor of written notice thereofor notices to the Company, declare all the Convertible Notes to be due and payable, whereupon the same shall forthwith mature and become due and payable, together with all interest accrued thereon, without presentment, demand, protest or notice, all of which are hereby waived; provided, however, that if such this provision is subject to the condition cannot that if, at any time after the principal of the Convertible Notes shall so become due and payable, any arrears of principal and interest on the Convertible Notes (with interest at the rate specified in the Convertible Notes on any overdue principal and, to the extent legally enforceable, on any interest overdue) shall be remedied within such 30-day periodpaid by or for the account of the Company, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as holder or holders of at least fifty-one percent (51%) in aggregate principal amount of the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligationConvertible Notes then outstanding, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, written notice or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard notices to the existence of any cure or grace period before Company, may waive such failure by the RockGen Lessee becomes a Lease Event of Default)Default and its consequences and rescind or annul such declaration, but no such waiver shall extend to or affect any subsequent Event of Default or impair any right resulting therefrom; provided, howeverfurther, that notwithstanding the foregoing, no Lease if there shall occur an Event of Default under Section 16(mclause (f) above, or a breach of the covenants contained in Sections 9.1 or 9.3 hereof, then the Convertible Notes, together with all interest accrued thereon, shall immediately mature and no remedies under become due and payable, without the Facility Lease may be exercised until necessity of any action by the Purchasers or notice to the Company. If any holder of a Calpine Guaranty Event Convertible Note shall give any notice or take any other action with respect to a claimed default, the Company, forthwith upon receipt of Default has occurred such notice or obtaining knowledge of such other action, will give written notice thereof to all other holders of the Convertible Notes then outstanding, describing such notice or other action and is continuingthe nature of the claimed default.
Appears in 2 contracts
Sources: Convertible Subordinated Note Purchase Agreement (Langer Inc), Convertible Subordinated Note Purchase Agreement (Langer Partners LLC)
Defaults. The Upon the happening of any of the following events shall constitute an "Event (collectively, “Events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity”):
(a) the Guarantor or the RockGen Lessee under the Facility Lease if Borrower shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due of any Obligation under this Agreement or any Loan Document, provided, however, that, for purposes of Borrower’s obligation to make payment of any Obligations to Lender comprised of Obligations to reimburse Lender for or to pay field examination expenses and payable under such Facility Lease or this Guaranty within five legal fees and expenses incurred by Lender after the date hereof, no Event of Default shall be deemed to have occurred, unless sixty (560) days after have elapsed from the same date of demand therefor by Lender; provided that, Lender’s right hereunder to charge such fees and expenses to Borrower shall become due thereundernot be affected by the foregoing and in the event Lender so charges Borrower for such fees and expenses any such incipient Event of Default shall be deemed cured thereby; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor if Borrower shall fail to comply with its covenants set forth any terms, conditions, covenant, warranty or representation contained in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) Article 11 or 8.4 (assignment of Guaranty) Article 15 of this Guaranty.Agreement; or
(c) if Borrower shall fail to comply with any term, condition, covenant or warranty of or in this Agreement, any other Loan Document or any other agreement between Lender and Borrower, other than in Article 11 or Article 15 of this Agreement, and such failure continues for a period in excess of twenty (20) days after notice thereof is given by Lender to Borrower; or
(d) the Guarantor if Borrower shall fail to perform or observe any covenant, obligation or agreement cease to be performed or observed by it under any Calpine Document (other than any covenantSolvent, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to make an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors, call a meeting of its creditors to obtain any general financial accommodation, suspend business or if any case under any provision of the Bankruptcy Code, including provisions for reorganizations, shall be commenced by or against Borrower; or
(ve) admits if any statement or representation contained in writing its inability any financial statement or certificate delivered by Borrower to generally pay its debts as such debts become dueLender shall be false, in any material respect, when made; or
(f) if any federal tax lien is filed of record against Borrower or takes any comparable action under any foreign laws relating to insolvency;Guarantor and is not bonded or discharged within ten (10) days; or
(g) an involuntary case or other proceeding if Borrower’s independent public accountants shall be commenced against refuse to deliver any financial statement required by this Agreement (after the Guarantor or any Significant Subsidiary seeking date due hereunder) within ten (i10) liquidation, reorganization or other relief with respect to it or its debts under Title 11 days after written demand by Lender for delivery of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiaryfinancial statements; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;or
(h) if a receiver, trustee or equivalent officer shall be appointed for all or any representation or warranty made by of the Guarantor herein assets of Borrower; or
(i) if a judgment for more than Two Hundred and Fifty Thousand Dollars ($250,000) shall prove to have been incorrect be entered against Borrower in any material respect when made action or misleading proceeding and shall not be stayed, vacated, bonded, paid, discharged or applied in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereofgood faith within twenty (20) days; provided, howeverthat, that no Event of Default shall be deemed to have occurred in the case of any judgment where the claim is covered by insurance and the insurance company has accepted liability therefor; or
(j) if any obligation of Borrower in respect of Indebtedness shall be declared to be or shall become due and payable prior to the stated maturity thereof or such condition canobligation shall not be remedied within paid as and when the same becomes due and payable; or there shall occur any event or condition which constitutes an event of default under any mortgage, indenture, instrument, agreement or evidence of indebtedness relating to any obligation of Borrower in respect of any such 30-day periodIndebtedness the effect of which is to permit the holder or the holders of such mortgage, then indenture, instrument, agreement or evidence of Indebtedness, or a trustee, agent or other representative on behalf of such holder or holders, to cause the period within which Indebtedness evidenced thereby to remedy such condition become due prior to its stated maturity; provided, that, the foregoing shall be extended not include (a) Indebtedness to Lender; or (b) Indebtedness arising in connection with any real property lease obligations up to an additional 60 days$50,000.00, so long as no judgments are entered against Borrower as a result of Borrower’s failure to pay such Indebtedness; or
(k) upon the Guarantor diligently pursues such remedy happening of any Reportable Event which Lender in its discretion determines could reasonably be expected to constitute grounds for the termination of any Plan, or if a trustee shall be appointed by an appropriate United States District Court or other court of administrative tribunal to administer any Plan, or if the Pension Benefit Guaranty Corporation shall institute proceedings to terminate any Plan or to appoint a trustee to administer any Plan; or
(l) upon the occurrence and such condition is reasonably capable continuance of being remedied within such additional 60-day period. The grace periods set forth any Material Adverse Effect, which in the sole and absolute opinion of Lender, impairs Lender’s security or increases its risks; or
(m) upon the happening of any of the events described in Section 7.1(a19.1(d), Section 19.1(e), Section 19.1(g), Section 19.1(h), Section 19.1(i) or Section 19.1(j) with respect to a Guarantor or if any Guarantor purports to terminate its guaranty or if any Validity/Support Guarantor purports to terminate his/its Validity/Support Guaranty or upon the death of any Guarantor or Validity/Support Guarantor that is a natural person; then and (b) above shall not affect in any way such event, Lender may terminate this Agreement without prior notice or demand to Borrower or may demand payment of all Obligations (whether otherwise then payable on demand or not) without terminating this Agreement and shall, in any event, be under no further responsibility to extend any credit or afford any financial accommodation to Borrower, whether under this Agreement or otherwise or upon the right hereunder sale of any Beneficiary entitled to Guarantor at a payment fair value of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due more than fifty thousand (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default$50,000); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 2 contracts
Sources: Loan and Security Agreement (Helios & Matheson North America Inc.), Loan and Security Agreement (Helios & Matheson North America Inc.)
Defaults. The occurrence of any one or more of the following events shall constitute an "“Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):”:
(a) the Guarantor or the RockGen Lessee under the Facility Lease The Company shall fail to make pay (i) any interest due on the Note, or any other amount payable hereunder (other than a principal payment with respect to Periodic Rent or on the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination ValueNote) when due and payable under such Facility Lease or this Guaranty within by five (5) days after the same shall become becomes due; or (ii) any principal amount due thereunder; oron the Note when due;
(b) The Company shall default in the Guarantor performance or the RockGen Lessee shall fail to make observance of any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period agreement, covenant, condition, provision or term contained in Article VI or Section 7.01 or 7.06 of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicablethis Agreement;
(c) The Guarantor Company or any Credit Party shall fail default in the performance or observance of any of the other agreements, covenants, conditions, provisions or terms in this Agreement or any Loan Document continuing for a period of thirty days after the earlier of the date upon which (i) the Chairman, President or Chief Financial Officer of the Company or such other Credit Party obtains knowledge of such default or (ii) written notice thereof is given to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.the Company by the Lender;
(d) Any representation or warranty made by the Guarantor Company herein or any certificate delivered pursuant hereto, or any financial statement delivered to Lender hereunder, shall fail prove to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) have been false in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement as of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee time when made or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereofgiven;
(e) there shall have occurred either (i) a default by the Guarantor The Company or any Restricted Subsidiary under shall fail to pay as and when due and payable (whether at maturity, by acceleration or otherwise) all or any instrument part of the principal of or instruments under which there is or may be secured or evidenced interest on any Indebtedness of the Guarantor or any Restricted Subsidiary assumed by it, or of the Guarantor rentals due under any lease or sublease, or of any other obligation for the payment of money (other than the Obligations) having an outstanding principal aggregate amount of which Indebtedness, rentals and other obligations exceeds $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments3,000,000), and such unpaid portion exceeds $50,000,000 (default shall not be cured within the period or its foreign currency equivalent) individually or periods of grace, if any, specified in the aggregate and is not paidinstruments governing such obligations; or default shall occur under any evidence of, or any indenture, lease, sublease, agreement or other instrument governing such obligations, and such default is not cured or waived, within shall continue for a period of time sufficient to permit the acceleration of the maturity of any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of or other obligation or the Guarantor or a Restricted Subsidiary becoming aware termination of such defaultlease or sublease;
(f) A final judgment which, together with all other outstanding final judgments against the Guarantor Company and its Restricted Subsidiaries, or any Significant of them, exceeds an aggregate of $3,000,000 shall be entered against the Company or any Restricted Subsidiary pursuant to and shall remain outstanding and unsatisfied, unbonded, unstayed or within uninsured after 60 days from the meaning date of entry thereof;
(g) The Company, any Bankruptcy Law:
Restricted Subsidiary or any Credit Party shall: (i) commences a voluntary case;
become insolvent; or (ii) consents be unable, or admit in writing its inability to the entry of an order for relief against it in an involuntary case;
pay its debts as they mature; or (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes make a general assignment for the benefit of creditors or to an agent authorized to liquidate any substantial amount of its creditorsproperty; or
or (iv) become the subject of an “order for relief” within the meaning of the United States Bankruptcy Code; or (v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) subject of a creditor’s petition for liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency effect a plan or other similar law now or hereafter in effect, arrangement with creditors which remains undismissed for a period of sixty (60) days; or (iivi) apply to a court for the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or receiver for any substantial part of its property assets; or (iiivii) have a custodian or receiver appointed for any of its assets (with or without its consent); or (viii) have any of its assets garnished, seized or forfeited, or threatened with garnishment, seizure or forfeiture; or (ix) otherwise become the winding-up subject of any insolvency proceedings or liquidation of the Guarantor propose or such Significant Subsidiary; and such involuntary case enter into any formal or other proceeding shall remain undismissed and unstayed for a period of 60 daysinformal composition or arrangement with its creditors;
(h) This Agreement, any representation Note or warranty made any Loan Document shall, at any time after their respective execution and delivery, and for any reason, cease to be in full force and effect or be declared null and void, or be revoked or terminated, or the validity or enforceability thereof or hereof shall be contested by the Guarantor herein shall prove to have been incorrect in Company, any material respect when made Credit Party or misleading in any material respect when made because shareholder of the omission Company or any Credit Party, or the Company or any Credit Party shall deny that it has any or further liability or obligation thereunder or hereunder, as the case may be;
(i) Any Reportable Event, which the Lender determines in good faith to state constitute grounds for the termination of any Plan by the Pension Benefit Guaranty Corporation or for the appointment by the appropriate United States District Court of a material fact trustee to administer any Plan, shall have occurred, or any Plan shall be terminated within the meaning of Title IV of ERISA, or a trustee shall be appointed by the appropriate United States District Court to administer any Plan, or the Pension Benefit Guaranty Corporation shall institute proceedings to terminate any Plan or to appoint a trustee to administer any Plan, and in case of any event described in the preceding provisions of this subsection (i) the Lender determines in good faith that the aggregate amount of the liability of the Company and its Subsidiaries to the Pension Benefit Guaranty Corporation under ERISA shall exceed $3,000,000 and such incorrect or misleading representation liability is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (andcovered, for the avoidance benefit of doubtthe Company, without regard to by insurance; or the existence Company or any Subsidiary shall become a member of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event Multiemployer Plan; or
(j) Any Change of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingControl shall occur.
Appears in 2 contracts
Sources: Credit Agreement (Strattec Security Corp), Credit Agreement (Strattec Security Corp)
Defaults. The Tenant agrees that any one or more of the following events shall constitute be considered an "Event event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):default as said term is used herein:
(a) the Guarantor Tenant shall be adjudged an involuntary bankrupt, or the RockGen Lessee a decree or order approving, as properly filed, a petition or answer filed against Tenant asking reorganization of Tenant under the Facility Lease Federal bankruptcy laws as now or hereafter amended, or under the laws of any state, shall fail to make be entered, and any payment with respect to Periodic Rent such decree or the Termination Value judgment or order shall not have been vacated or set aside within sixty (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (560) days after from the same shall become due thereunderdate of the entry or granting thereof; or
(b) Tenant shall file or admit the Guarantor jurisdiction of the court and the material allegations contained in any petition in bankruptcy or any petition pursuant or purporting to be pursuant to the RockGen Lessee Federal bankruptcy laws as now or hereafter amended, or Tenant shall fail institute any proceedings or shall give its consent to make the institution of any other amount payable proceedings for any relief of Tenant under any Operative Document after bankruptcy or insolvency laws or any laws relating to the same shall become due thereunder and such failure shall have continued from a period relief of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor debtors, readjustment of written notice of such failure by the RockGen Lessee and/or the Guarantorindebtedness, as applicable;reorganization, arrangements, composition, or extension; or
(c) The Guarantor Tenant shall fail to comply with its covenants set forth in Section 3.3 (transfer make any assignment for the benefit of RockGen Lessee ownership), 3.6 (Guarantor merger) creditors or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform apply for or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents consent to the appointment of a Custodian receiver for Tenant or any of it or for all or substantially all the property of its property;
(iv) makes a general assignment for the benefit of its creditorsTenant; or
(vd) admits The Leased Premises are levied upon by any revenue officer or similar officer and Tenant shall fail to contest the validity of the levy and give security to Landlord to insure payment thereof, or having commenced to contest the same and having given such security, shall fail to prosecute such contest with diligence, or shall fail to have the same released and satisfy any judgment rendered thereon, and such default continues for ten (10) days after notice thereof in writing its inability to generally pay its debts as Tenant; or
(e) A decree or order appointing a receiver of the property of Tenant shall be made, and such debts become duedecree or order shall not have been vacated or set aside within sixty (60) days from the date of entry or granting thereof; or
(f) Tenant shall abandon the Leased Premises or takes any comparable action under any foreign laws relating to insolvency;vacate the same during the term hereof; or
(g) an involuntary case Tenant shall default in any payment of rent or in any other proceeding shall payment required to be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidationmade by Tenant hereunder when due as herein provided, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding default shall remain undismissed and unstayed continue for a period of 60 days;
seven (h7) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereofthereof in writing to Tenant; provided, however, that if such condition cannot be remedied within such 30-the said seven (7) day period, then the period within which to remedy such condition shall be extended up deemed to an additional 60 days, so long as be three (3) days in the Guarantor diligently pursues such remedy and such condition event that the Tenant assigns this Lease to a person or entity who is reasonably capable either not owned by Tenant or a parent corporation of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(aTenant; or
(h) and (b) above Tenant shall not affect in any way fail to contest the right hereunder validity of any Beneficiary entitled lien or claimed lien and give security to a payment of any amount payable Landlord to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt insure payment thereof, or performance having commenced to contest the same and having given such security, shall fail to prosecute such contest with diligence, or shall fail to have the same released and satisfy any judgment rendered thereon, and such default continues for ten (10) days after notice thereof in writing to Tenant; or
(i) Tenant shall default in keeping, observing, or performing any of the other covenants or agreements herein contained to be kept, observed, and performed by Tenant, and such default shall continue for thirty (30) days after notice thereof in writing to Tenant; or
(j) Tenant shall repeatedly be late in the payment of rent or other charges required to be paid hereunder or shall repeatedly default in the keeping, observing, or performing of any other covenants or agreements herein contained to be kept, observed, or performed by Tenant (provided notice of such payment or other defaults shall have been given to Tenant, but whether or not Tenant shall have timely cured any such payment or other defaults of which notice was given). For purposes of this paragraph, the term “repeatedly” shall mean three (3) times in any twelve (12) month period. The Tenant further covenants and agrees that, if the rent above reserved, or any part thereof, shall be in default, or in case of a breach of any of the covenants or agreements herein, Landlord may declare this Lease terminated, and after the expiration of fifteen (15) days from the date of receipt of service of a written notice to that effect, be entitled to the possession of the Leased Premises, either by the Guarantor immediately upon expiration of this Lease or by any failure termination of said term as herein provided for. If the Tenant shall refuse to surrender and deliver up the possession of the RockGen Lessee to pay Leased Premises, after the service of said notice, then and in that event, the Landlord may, without further notice or perform demand, enter into and upon said Leased Premises, or any part thereof, and take possession thereof and repossess the same when it has become due (andas of the Landlord’s former estate, for and expel, remove and put out of possession the avoidance of doubtTenant, using such help, assistance and force in so doing as may be needful and proper, without regard being liable for prosecution or damages therefor, and without prejudice to the existence of any cure or grace period before remedy allowed by law available in such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingcases.
Appears in 2 contracts
Sources: Lease Agreement (Cobiz Inc), Lease Agreement (Cobiz Inc)
Defaults. The If any of the following events (each individually, a “Default”) shall constitute an "Event of Default" hereunder (whether any such event shall occur and be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):continuing:
(a) the Guarantor or the RockGen Lessee under the Facility Lease Borrower (i) shall fail to make pay any payment with principal of any Advance or any reimbursement obligation in respect to Periodic Rent or of any LC Disbursement when the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when same becomes due and payable under in accordance with the terms hereof, or (ii) shall fail to pay any interest on any Advance or any fee or other amount to be paid by it hereunder within three (3) Business Days of the date on which such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunderpayment is due; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantorcertification, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Borrower or a Guarantor herein or by the Borrower or a Guarantor (or any of their respective officers) in writing (including representations and warranties deemed made pursuant to Sections 2.04(a)(G), or 3.02) under or in connection with any Credit Document shall prove to have been incorrect in any material respect when made or misleading deemed made; or
(c) the Borrower or a Guarantor shall fail to perform or observe (i) any term, covenant or agreement contained in Section 7.01 on its part to be performed or observed, (ii) any term, covenant or agreement contained in Sections 6.03 or 6.05 (with respect to maintaining the corporate existence of the Borrower or a Guarantor) or in Article VII (other than Section 7.01) on its part to be performed or observed and such failure shall continue for five (5) days after the date notice thereof shall have been given to the Borrower or such Guarantor by the Administrative Agent or any Bank, or (iii) any term, covenant or agreement contained in any material respect when made because Credit Document (other than a term, covenant or agreement described in clauses (a), (b) above and subclauses (i) and (ii) of clause (c)) on its part to be performed or observed and such failure shall continue for thirty (30) days after the date notice thereof shall have been given to the Borrower or the applicable Guarantor by the Administrative Agent or any Bank; or
(d) the Borrower, the Guarantors, or any of their respective Subsidiaries shall fail to pay any principal of or premium or interest on any of its Debt which is outstanding in a principal amount of at least $50,000,000 in the aggregate (excluding Debt consisting of the omission to state a material fact Advances) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such incorrect failure shall continue after the applicable grace period, if any, specified in the agreement or misleading representation instrument relating to such Debt, or any event of default or other event shall occur or condition shall exist under any agreement or instrument creating or evidencing such Debt in such principal amount, and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such event or condition is and continues to accelerate, or to permit the holder or holders of any such Debt or any trustee or agent on its or their behalf to accelerate, the maturity of such Debt, provided, however, a Default or an event which, with the giving of notice, the lapse of time or both, would constitute a Default, shall have occurred or be material and unremedied continuing for purposes of this clause (d) shall not be deemed to exist due to the acceleration of the maturity of any obligation to a Bank or an affiliate (within the meaning of Regulation U) of a Bank solely by reason of a default in the performance of a term or condition in any agreement or instrument under or by which such obligation is created, evidenced or secured, which term or condition restricts the right of the Borrower or any other Person to sell, pledge or otherwise dispose of any margin stock (within the meaning of Regulation U) held by the Borrower or any such other Person; or
(e) the Borrower, a Guarantor, or any Significant Subsidiary shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Borrower, a Guarantor or any Significant Subsidiary seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), shall remain undismissed or unstayed for a period of 30 days after receipt sixty (60) days; or the Borrower, a Guarantor or any Significant Subsidiary shall take any corporate action to authorize any of the actions set forth above in this clause (e); or
(f) any judgment or order against the Borrower, a Guarantor or any of their respective Consolidated Subsidiaries is rendered for the payment of money in excess of $50,000,000 over the sum of available insurance therefor and adequate cash reserves for which have not been established and set aside solely for the purpose of payment of such judgment or order and such judgment or order remains unsatisfied and either (i) enforcement proceedings shall have been commenced by the Guarantor creditor upon such judgment or order or (ii) there shall be any period of written sixty (60) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(g) the Borrower shall cease to own directly or indirectly 100% of the issued and outstanding voting stock of the Guarantors; or
(h) any Person shall become the “beneficial owner” (as defined under Exchange Act Rule 13d-3) of at least a majority of the outstanding voting common stock of the Borrower; or
(i) a Termination Event shall have occurred that, when taken together with all other Termination Events that have occurred, could reasonably be expected to result in a Material Adverse Effect; or
(i) any material provision of any Credit Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all Obligations, ceases to be in full force and effect; (ii) the Borrower or any other Person contests in writing the validity or enforceability of any provision of any Credit Document; (iii) the Borrower denies in writing that it has any or further liability or obligation under any Credit Document, or purports in writing to revoke, terminate or rescind any Credit Document or (iv) any Lien purported to be created under any Collateral Document shall cease to be, or shall be asserted by any Loan Party not to be, a valid and perfected Lien on any material portion of the Collateral, with the priority required by the applicable Collateral Document, except as a result of (x) the sale or other disposition of the applicable Collateral in a transaction permitted under the Credit Documents, (y) the release thereof as provided in Section 9.09, or (z) the Administrative Agent’s failure to (A) maintain possession of any stock certificate, promissory note or other instrument delivered to it under the Collateral Documents or (B) file Uniform Commercial Code continuation statements; then, and in any such event, the Administrative Agent (i) shall at the request, or may with the consent, of the Majority Banks, after providing notice thereof; to the Borrower, declare all of the Commitments and the obligation of each Bank to make Advances to be terminated, whereupon all of the Commitments and each such obligation shall forthwith terminate, (ii) shall at the request, or may with the consent, of the Majority Banks, by notice to the Borrower declare the Advances, all interest thereon and all other amounts payable by the Borrower and the Guarantors under this Agreement to be forthwith due and payable, whereupon such Advances, such interest and all such amounts shall become and be forthwith due and payable, and require that the Borrower provide cash collateral as required in Section 2.19(j), and (iii) shall at the request, or may with the consent, of the Majority Banks, exercise on behalf of itself, the Banks and the Issuing Banks all rights and remedies available to it, the Banks and the Issuing Banks under the Credit Documents and Applicable Law, in each case without requirement of any presentment, demand, protest, notice of intent to accelerate, further notice of acceleration or other further notice of any kind (other than the notice expressly provided for above), all of which are hereby expressly waived by the Borrower and each Guarantor, provided, however, that if such condition cannot be remedied within such 30-day period, then in the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable event of being remedied within such additional 60-day period. The grace periods set forth any Default described in Section 7.1(a8.01(e) with respect to the Borrower or any Guarantor, (A) all of the Commitments and the obligation of each Bank to make Advances shall automatically be terminated, (B) the Advances, all such interest and all such amounts shall automatically become and be due and payable and (C) and (b) the obligation of the Borrower to cash collateralize the LC Exposure as provided above shall not affect automatically become effective, in each case without presentment, demand, protest, notice of intent to accelerate, notice of acceleration or any way the right hereunder other notice of any Beneficiary entitled to a payment kind, all of any amount payable to it, or performance of any obligation, which are hereby expressly waived by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) Borrower and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingeach Guarantor.
Appears in 2 contracts
Sources: Credit Agreement (Brinker International, Inc), Credit Agreement (Brinker International, Inc)
Defaults. The occurrence of any of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):Default hereunder:
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein Issuer, the Master Servicer, the Eligible Lender Trustee, the Indenture Trustee, the Seller, the Administrator or the Depositor hereunder or under the Transaction Documents, or in any certificate furnished hereunder or under the Transaction Documents, shall prove to have been incorrect be untrue or incomplete in any material respect;
(i) the Issuer, the Master Servicer, the Eligible Lender Trustee, the Seller or the Depositor shall fail to pay when due any amount payable by the Issuer, the Master Servicer, the Eligible Lender Trustee, the Indenture Trustee, the Seller, the Administrator or the Depositor hereunder or (ii) a legislative body has enacted any law that declares or a court of competent jurisdiction shall find or rule that any Transaction Document is not valid and binding on the Issuer, the Master Servicer, the Eligible Lender Trustee, the Indenture Trustee, the Seller, the Administrator or the Depositor;
(c) the occurrence and continuance of an "Event of Default" under the Indenture, as defined therein.
(d) any failure on the part of the Issuer, the Master Servicer, the Eligible Lender Trustee, the Indenture Trustee, the Seller, the Administrator or the Depositor duly to observe or perform in any material respect when made any other of the covenants or misleading agreements on the part of the Issuer, the Master Servicer, the Eligible Lender Trustee, the Indenture Trustee, the Seller, the Administrator or the Depositor contained in this Insurance Agreement or in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and other Transaction Document which continues to be material and unremedied for a period of 30 days with respect to this Insurance Agreement, or, with respect to any other Transaction Document, beyond any cure period provided for therein, after receipt by the Guarantor of date on which written notice thereof; providedof such failure, howeverrequiring the same to be remedied, that if such condition cannot be remedied within such 30-day periodshall have been given to the Issuer, then the period within which to remedy such condition shall be extended up to an additional 60 daysMaster Servicer, so long the Seller, the Administrator or the Depositor, as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligationapplicable, by the RockGen Lessee Insurer (with a copy to the Eligible Lender Trustee and the Indenture Trustee) or by the Eligible Lender Trustee or the Indenture Trustee (with a copy to the Insurer);
(e) decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any Operative Document to demand prompt payment thereofpresent or future federal or state bankruptcy, insolvency or similar law or the appointment of a conservator or receiver or liquidator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or performance thereoffor the winding-up or liquidation of its affairs, by shall have been entered against the Guarantor immediately upon Issuer, the Master Servicer, the Seller, the Administrator or the Depositor and such decree or order shall have remained in force undischarged or unstayed for a period of 90 consecutive days;
(f) the Issuer, the Master Servicer, the Seller, the Administrator or the Depositor shall consent to the appointment of a conservator or receiver or liquidator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Issuer, the Master Servicer, the Seller, the Administrator or the Depositor or of or relating to all or substantially all of the property of either;
(g) the Issuer, the Master Servicer, the Seller, the Administrator or the Depositor shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of or otherwise voluntarily commence a case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(h) the occurrence and continuance of a "Master Servicer Default" or an "Administrator Default" under the Sale and Servicing Agreement as defined herein; or
(i) the failure of the RockGen Lessee Seller to pay comply with, or perform maintain the same when it has become due (andaccuracy of, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) Opinion Facts and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingAssumptions.
Appears in 2 contracts
Sources: Insurance Agreement (Keycorp Student Loan Trust 2000-B), Insurance Agreement (Keycorp Student Loan Trust 2000-A)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event A Party shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order default under this Lease upon the occurrence of any court one or any order, rule or regulation more of any Governmental Entity):the following events:
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail The failure by such Party to make any payment with respect of any amount required to Periodic Rent or the Termination Value be made by such Party hereunder, as and when due, where such failure shall continue for a period of thirty (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (530) days after receipt by such Party of written notice thereof from the same shall become due thereunderother Party; or
(b) the Guarantor The failure by such Party to observe or the RockGen Lessee shall fail to make perform any other amount payable under any Operative Document after the same shall become due thereunder and material covenants, conditions or provisions of this Lease to be observed or performed by such Party, where such failure shall have continued from continue for a period of ten thirty (1030) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor such Party of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trusteeother Party; provided, however, that if the nature of the failure is such that more than thirty (30) days are reasonably required for its cure, then such Party shall not be deemed to be in default if such condition cannot be remedied Party commences such cure within said thirty (30) day period and thereafter diligently prosecutes such 30-day periodcure to completion; or
(c) If by order of a court of competent jurisdiction, then the period within which to remedy such condition a receiver or liquidator or trustee of a Party shall be extended up to an additional 180 daysappointed, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable receiver or liquidator or trustee shall not have been discharged within a period of being remedied within sixty (60) days; or if by decree of such additional 180-day perioda court, a Party shall be adjudicated bankrupt or insolvent or any substantial part of the property of such Party shall have been sequestered, and such decree shall have continued undischarged and unstayed for a period of sixty (260) with respect days after the entry thereof; or if a petition to declare bankruptcy or to reorganize a Party pursuant to any of the provisions of the federal bankruptcy laws or pursuant to any other obligationsimilar state statute applicable to such Party, covenant as now or agreement hereunderhereafter in effect, 30 shall be filed against such Party and shall not be dismissed within sixty (60) days after receipt by the Guarantor of written notice thereof;such filing; or
(ed) there If a Party shall have occurred either (i) file a default by the Guarantor or any Restricted Subsidiary voluntary petition in bankruptcy under any instrument provision of any federal or instruments state bankruptcy law or shall consent to the filing of any bankruptcy or reorganization petition against it under which there is or may be secured or evidenced any Indebtedness similar law; or, without limitation of the Guarantor or any Restricted Subsidiary generality of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (foregoing, if a Party shall file a petition or its foreign currency equivalent) answer or more individually consent seeking relief or assisting in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) seeking relief in a default by the Guarantor or proceeding under any Restricted Subsidiary in the payment when due of any portion of the principal under provisions of the federal bankruptcy laws or pursuant to any other similar state statute applicable to such instrument Party, as now or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or hereafter in the aggregate and is not paideffect, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days an answer admitting the material allegations of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief petition filed against it in such a proceeding; or if a Party shall make an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits or if a Party shall admit in writing its inability to generally pay its debts generally as such debts they become due; or takes any comparable action under any foreign laws relating if a Party shall consent to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trusteereceiver or receivers, receiveror trustee or trustees, liquidator, custodian or other similar official with respect to liquidator or liquidators of it or of all or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiaryproperty; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.or
Appears in 2 contracts
Sources: Contribution, Conveyance and Assumption Agreement (Phillips 66 Partners Lp), Contribution, Conveyance and Assumption Agreement
Defaults. The Upon the happening of any of the following events shall constitute an "Event (collectively, “Events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity”):
(a) the Guarantor or the RockGen Lessee under the Facility Lease if Borrower shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due of any Obligation under this Agreement or any Loan Document, provided, however, that, for purposes of Borrower’s obligation to make payment of any Obligations to Lender comprised of Obligations to reimburse Lender for or to pay field examination expenses and payable under such Facility Lease or this Guaranty within five legal fees and expenses incurred by Lender after the date hereof, no Event of Default shall be deemed to have occurred, unless sixty (560) days after have elapsed from the same date of demand therefor by Lender; provided that, Lender’s right hereunder to charge such fees and expenses to Borrower shall become due thereundernot be affected by the foregoing and in the event Lender so charges Borrower for such fees and expenses any such incipient Event of Default shall be deemed cured thereby; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor if Borrower shall fail to comply with its covenants set forth any terms, conditions, covenant, warranty or representation contained in Section 3.3 (transfer of RockGen Lessee ownership)10, 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) Section 11, Section 12 and Section 13 of this Guaranty.Agreement; or
(c) if Borrower shall fail to comply with any term, condition, covenant or warranty of or in this Agreement, any other Loan Document or any other agreement between Lender and Borrower, other than in Section 10, Section 11, Section 12 and Section 13 of this Agreement, and such failure continues for a period in excess of twenty (20) days after notice thereof is given by Lender to Borrower; or
(d) the Guarantor if Borrower shall fail to perform or observe any covenant, obligation or agreement cease to be performed or observed by it under any Calpine Document (other than any covenantSolvent, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to make an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors, call a meeting of its creditors to obtain any general financial accommodation, suspend business or if any case under any provision of the Bankruptcy Code, including provisions for reorganizations, shall be commenced by or against Borrower; or
(ve) admits if any statement or representation contained in writing its inability any financial statement or certificate delivered by Borrower to generally pay its debts as such debts become dueLender shall be false, in any material respect, when made; or
(f) if any federal tax lien is filed of record against Borrower or takes any comparable action under any foreign laws relating to insolvency;Guarantor and is not bonded or discharged within ten (10) days; or
(g) an involuntary case or other proceeding if Borrower’s independent public accountants shall be commenced against refuse to deliver any financial statement required by this Agreement (after the Guarantor or any Significant Subsidiary seeking date due hereunder) within ten (i10) liquidation, reorganization or other relief with respect to it or its debts under Title 11 days after written demand by Lender for delivery of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiaryfinancial statements; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;or
(h) if a receiver, trustee or equivalent officer shall be appointed for all or any representation or warranty made by of the Guarantor herein assets of Borrower; or
(i) if a judgment for more than Two Hundred and Fifty Thousand Dollars ($250,000) shall prove to have been incorrect be entered against Borrower in any material respect when made action or misleading proceeding and shall not be stayed, vacated, bonded, paid, discharged or applied in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereofgood faith within twenty (20) days; provided, howeverthat, that no Event of Default shall be deemed to have occurred in the case of any judgment where the claim is covered by insurance and the insurance company has accepted liability therefor; or
(j) if any obligation of Borrower in respect of Indebtedness shall be declared to be or shall become due and payable prior to the stated maturity thereof or such condition canobligation shall not be remedied within paid as and when the same becomes due and payable; or there shall occur any event or condition which constitutes an event of default under any mortgage, indenture, instrument, agreement or evidence of indebtedness relating to any obligation of Borrower in respect of any such 30-day periodIndebtedness the effect of which is to permit the holder or the holders of such mortgage, then indenture, instrument, agreement or evidence of Indebtedness, or a trustee, agent or other representative on behalf of such holder or holders, to cause the period within which Indebtedness evidenced thereby to remedy such condition become due prior to its stated maturity; provided, that, the foregoing shall be extended not include (a) Indebtedness to Lender; or (b) Indebtedness arising in connection with any real property lease obligations up to an additional 60 days$50,000.00, so long as no judgments are entered against Borrower as a result of Borrower’s failure to pay such Indebtedness; or
(k) upon the Guarantor diligently pursues such remedy happening of any Reportable Event which Lender in its discretion determines could reasonably be expected to constitute grounds for the termination of any Plan, or if a trustee shall be appointed by an appropriate United States District Court or other court of administrative tribunal to administer any Plan, or if the Pension Benefit Guaranty Corporation shall institute proceedings to terminate any Plan or to appoint a trustee to administer any Plan; or
(l) upon the occurrence and such condition is reasonably capable continuance of being remedied within such additional 60-day period. The grace periods set forth any Material Adverse Effect, which in the sole and absolute opinion of Lender, impairs Lender’s security or increases its risks; or
(m) upon the happening of any of the events described in Section 7.1(a17.1(d), Section 17.1(e), Section 17.1(g), Section 17.1(h), Section 17.1(i) or Section 17.1(j) with respect to a Guarantor or if any Guarantor purports to terminate its guaranty or if any Validity/Support Guarantor purports to terminate his/its Validity/Support Guaranty or upon the death of any Guarantor or Validity/Support Guarantor that is a natural person; then and (b) above shall not affect in any way such event, Lender may terminate this Agreement without prior notice or demand to Borrower or may demand payment of all Obligations (whether otherwise then payable on demand or not) without terminating this Agreement and shall, in any event, be under no further responsibility to extend any credit or afford any financial accommodation to Borrower, whether under this Agreement or otherwise or upon the right hereunder sale of any Beneficiary entitled to Guarantor at a payment fair value of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due more than fifty thousand (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default$50,000); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 2 contracts
Sources: Loan and Security Agreement (Helios & Matheson North America Inc.), Loan and Security Agreement (Helios & Matheson North America Inc.)
Defaults. 15.1 The following events shall constitute an "Event failure of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgmentthe Owner, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor Developer or the RockGen Lessee under Town to comply with the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value terms of this Agreement not cured within thirty (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (530) days after written notice from the same shall become due thereunder; or
non-defaulting party to the defaulting party (b) the Guarantor as such time period may be extended with regard to non-monetary breaches or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a reasonable period of ten time based on the circumstances, provided such defaulting party commences to cure such breach within such thirty (1030) Business Days after receipt day period and is proceeding diligently and expeditiously to complete such cure) shall constitute a default, entitling the non-defaulting party to pursue such remedies as deemed appropriate, including specific performance; provided however no termination of this Agreement may be declared by the RockGen Lessee Town absent its according the Owner and any relevant Developer the Guarantor of written notice of notice, hearing and opportunity to cure in accordance with the Act; and provided any such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor termination shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect limited to the Guarantor's guaranty ofportion of the Property in default, and agreement with respect to, any nonmonetary obligation, covenant provided further that nothing herein shall be deemed or agreement construed to preclude the Town or its designee from issuing stop work orders or voiding permits issued for Development when such Development contravenes the provisions of the RockGen Lessee under any Zoning Regulations or this Agreement. A default of the Operative Documents, 30 days after receipt Owner shall not constitute a default by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day periodDevelopers, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt default by the Guarantor of written notice thereof;
(e) there Developers shall have occurred either (i) not constitute a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may Owner. The parties acknowledge that individual residents and owners of completed buildings within the Property shall not be secured or evidenced any Indebtedness obligated for the obligations of the Guarantor Owner or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods Developer set forth in this Agreement.
15.2 Notwithstanding the foregoing or anything to the contrary in this Agreement, the parties agree that the Town’s sole and exclusive remedy for any default pursuant to Section 7.1(a12.1 of this Agreement (a “Phasing Default”) shall be to terminate this Agreement, upon which termination all rights and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure obligations of the RockGen Lessee parties under this Agreement shall cease, and the Town hereby expressly waives any and all other remedies it may otherwise have, either at law or in equity, resulting from or arising from a Phasing Default.
15.3 Notwithstanding anything to pay or perform the same when it has become due (andcontrary herein, in no event shall any party to this Agreement be liable, nor shall any action be brought, for the avoidance of doubtconsequential, without regard to the existence of any cure incidental, exemplary or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingpunitive damages.
Appears in 2 contracts
Sources: Annexation and Development Agreement, Annexation and Development Agreement
Defaults. The Section 6.1 Any of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):Default under this Agreement:
(a) The Borrowers shall default in the Guarantor or payment of sums due to the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder Bank and such failure default shall have continued from continue for a period of ten (10) Business Days days after receipt by the RockGen Lessee and the Guarantor of written notice to Borrowers of such failure by to make payment on the RockGen Lessee and/or the Guarantor, as applicabledue date;
(cb) The Guarantor Borrowers shall fail to comply with its covenants set forth default in Section 3.3 (transfer the performance or observance of RockGen Lessee ownership), 3.6 (Guarantor merger) any agreements or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement conditions required to be performed or observed by it the Borrowers under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) the terms of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instrumentsAgreement, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed continue for a period of 60 thirty (30) days after written notice to the Borrowers specifying such default (provided that if such default cannot be cured by the payment of monies and cannot reasonably be cured within thirty (30) days, Borrowers shall have a reasonable time to effect a cure, if curative action is commenced within said thirty (30) day period and is thereafter pursued diligently and in good faith by Borrowers to completion);
(hc) any Any representation or warranty made by the Guarantor herein Borrowers in this Agreement or in any certificate or document furnished under the terms of this Agreement shall prove to have been incorrect untrue in any material respect when made respect, and which can not or misleading has not been remedied within thirty (30) days following notice thereof, unless a new agreement has been reached between Borrowers and Bank which waives such Event of Default;
(d) The Borrowers shall be in any material respect when made because default under the terms of the omission Loan Documents or any other instrument executed and delivered by the Borrowers to state a material fact the Bank with respect to the Improvements, and such incorrect default shall not be cured by the Borrowers or misleading representation is waived by the Bank within the period of grace, if any, applicable to such default under the terms of such instruments;
(e) Any Borrower or any Guarantor shall be in default under the terms of any other indebtedness owed by any Borrowers or any Guarantor to Bank, and continues such default shall not be cured by the Borrowers or waived by the Bank within the period of grace, if any, applicable to such default under the terms of such instruments;
(f) Development of the Improvements shall be material and unremedied abandoned, or shall be unreasonably delayed or discontinued for a period of 30 thirty (30) days (for reasons other than those beyond the control of NTS Virginia or the Contractor), or development shall be delayed for any reason whatsoever to the extent that completion of the Improvements cannot, in the reasonable judgment of the Bank, be accomplished prior to the date specified in Section 4.1 hereof; or
(g) Any of the Borrowers and/or Guarantors: (i) shall admit in writing the respective inability to pay debts by Borrowers and/or Guarantors; or (ii) shall make an assignment for the benefit of creditors; or (iii) shall be adjudicated a bankrupt, or (iv) shall file a voluntary petition in bankruptcy or effect a plan or other arrangement with creditors, or (v) shall have applied for, or permitted the appointment of, a receiver or trustee or custodian for any of property or assets of Borrowers or the Guarantors, or a trustee, receiver or custodian shall have been appointed for any property or assets of the Borrowers and/or Guarantors who shall not have been discharged within sixty (60) days after receipt the date of his appointment;
(h) The Improvements and Improvements Site are no longer primarily used for the purpose disclosed to Bank upon submission of NTS Virginia’s Loan application to Bank for approval and NTS Virginia has not demonstrated to Bank’s reasonable satisfaction prior to the conversion of the use that the alternative use to which the Premises has been put meets mortgagee’s underwriting standards;
Section 6.2 Upon the occurrence of an Event of Default, unless such Event of Default is subsequently waived in writing by the Guarantor Bank, the Bank shall be entitled, at the option of written the Bank, to exercise any or all of the following rights and remedies:
(a) The Bank may terminate its obligation to make advances under this Agreement and may declare the entire unpaid principal balance of the advances to NTS Virginia made under this Agreement to be immediately due and payable, together with accrued and unpaid interest on such advances, without further notice thereof; providedto or demand on the Borrowers.
(b) The Bank may exercise all enforcement remedies specified in the Loan Documents and any other documents issued by the Borrowers with respect to the Loan, howeverincluding (without limiting the generality of the foregoing) the right to foreclose the Deed of Trust and other collateral securing the Note.
Section 6.3 If an Event of Default occurs that is specified in Section 6.1(f) or any Event of Default occurs that is caused by NTS Virginia’s failure, that if such condition cannot be remedied within such 30-day periodfor any reason, to continue with development of the Improvements as required by this Agreement, then the period within which Bank may (but shall not be obligated to) take over and complete development of the Improvements in accordance with the Plans and Specifications, with such changes as the Bank may, in its discretion, deem appropriate (provided the character and scope of the Improvements remains materially unchanged all at the risk, cost and expense of the Borrowers. The Bank may assume or reject any contracts entered into by NTS Virginia in connection with the Improvements, and may enter into additional or different contracts for services, labor and for materials required, in the judgment of the Bank, to remedy such condition complete the Improvements, and may pay, compromise and settle all claims in connection with the Improvements. All sums expended by the Bank in completing the Improvements (whether aggregating more or less than the amount of the Note) shall be extended up deemed advances made by the Bank to an additional 60 daysthe Borrowers, so long as and the Guarantor diligently pursues Borrowers shall be liable to the Bank for the repayment of such remedy and sums, together with interest on such condition is reasonably capable amounts from the date of being remedied within such additional 60-day periodtheir expenditure at the default rate specified in the Note. The grace periods set forth Bank may, in Section 7.1(a) its discretion, at any time, abandon work on the Improvements after having commenced such work, and (b) above may re-commence such work at any time, but nothing in this paragraph shall impose any obligation on the Bank to either complete or not affect to complete the Improvements. For the purpose of carrying out the provisions of this paragraph, the Borrowers irrevocably appoint the Bank its attorney-in-fact, with full power of substitution, to execute and deliver all such documents, pay and receive such funds, and take such action as may be necessary, in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure judgment of the RockGen Lessee Bank, to pay or perform complete the same when it has become due (and, for the avoidance of doubt, without regard Improvements.
Section 6.4 NTS Virginia unconditionally assigns to the existence Bank all of its rights in the development contract with the Contractor and any cure subcontractors or grace period before such failure by material suppliers it may have or enter into in the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding future in completing the foregoing, no Lease Event of Default Improvements. This assignment is to be accepted and become effective only in the event the Bank shall proceed with the remedies afforded under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing6.3 above.
Appears in 2 contracts
Sources: Development Loan Disbursing Agreement, Development Loan Disbursing Agreement (NTS Mortgage Income Fund)
Defaults. The following events shall constitute an be "Event Events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):":
(a) The occurrence of an Event of Default (as defined in the Guarantor or the RockGen Lessee Note) under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; orNote;
(b) the Guarantor Any representation or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from warranty of a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth Debtor in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually Agreement or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein Intellectual Property Security Agreement shall prove to have been incorrect in any material respect when made made;
(c) The failure by a Debtor to observe or misleading perform any of its obligations hereunder or in the Intellectual Property Security Agreement for five (5) days after delivery to such Debtor of notice of such failure by or on behalf of the Secured Party;
(d) A Debtor shall prepay, redeem, defease, purchase, or otherwise acquire any of its or its subsidiaries' indebtedness, other than permitted prepayments under the Note;
(e) A Debtor shall make any distribution or declare or pay any dividends (in cash or other property, other than common stock) on, or purchase, acquire, redeem, or retire any of its capital stock, of any class, whether now or hereafter outstanding;
(f) Parent shall modify or change its method of accounting or enter into, modify, or terminate any agreement currently existing, or at any time hereafter entered into with any third party accounting firm or service bureau for the preparation or storage of its accounting records;
(g) If a judgment or other claim becomes a lien or encumbrance upon any material respect when made because portion of the omission to state a material fact and such incorrect or misleading representation is and continues Debtor's assets; and
(h) If any provision of this Agreement shall at any time for any reason be declared to be material null and unremedied for a period of 30 days after receipt by void, or the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition validity or enforceability thereof shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to contested by a payment of any amount payable to itDebtor, or performance of a proceeding shall be commenced by a Debtor, or by any obligationgovernmental authority having jurisdiction over a Debtor, by seeking to establish the RockGen Lessee under any Operative Document to demand prompt payment invalidity or unenforceability thereof, or performance thereof, by the Guarantor immediately upon a Debtor shall deny that a Debtor has any failure of the RockGen Lessee liability or obligation purported to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default be created under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingthis Agreement.
Appears in 2 contracts
Sources: Intellectual Property Security Agreement (E Digital Corp), Security Agreement (E Digital Corp)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event Debtor shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee default under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value this Agreement and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement each of the RockGen Lessee under other Debt Documents if any one of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Lawfollowing should occur:
(i) commences Debtor breaches its obligation to pay within three (3) business days following the due date thereof any installment or other amount due or coming due under any of the Debt Documents, other than by Secured Party’s failure to process a voluntary casededuction from Debtor’s Primary Operating Account pursuant to Section 2(w);
(ii) consents Debtor, without the prior written consent of Secured Party, attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber, or allow Liens (except for Permitted Liens) upon, any of the entry of an order for relief against it in an involuntary caseCollateral;
(iii) consents Debtor breaches any of its insurance obligations under Section 4;
(iv) Debtor breaches any of its obligations under Sections 2(m) or 2(y) or Sections 3(i), (j), or (k);
(v) Debtor breaches any of its other non-payment obligations under any of the Debt Documents and fails to cure that breach within thirty (30) days after it has occurred;
(vi) Any warranty, representation or statement made by Debtor in any of the appointment Debt Documents or otherwise in connection with any of the Indebtedness shall be false or misleading in any material respect;
(vii) Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a Custodian material risk of it attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such risk;
(viii) Debtor breaches or is in default under any other agreement between Debtor and Secured Party;
(ix) Debtor or any guarantor or other obligor for any of the Indebtedness (collectively “Guarantor”) dissolves, terminates its existence, becomes insolvent or ceases to do business as a going concern;
(x) If Debtor or any Guarantor is a natural person, and Debtor or any such Guarantor dies or becomes incompetent;
(xi) A receiver is appointed for all or of any part of the property of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment for the benefit of creditors;
(xii) Debtor or any Guarantor files a petition under any bankruptcy, insolvency or similar law, or any such petition is filed against Debtor or any Guarantor and is not dismissed within forty-five (45) days;
(xiii) Debtor’s improper filing of an amendment or termination statement relating to a filed financing statement describing the Collateral;
(xiv) Debtor shall merge with or consolidate into any other entity or sell all or substantially all of its propertyassets or in any manner terminate its existence;
(ivxv) makes If Debtor is a general assignment for privately held corporation, more than 50% of Debtor’s voting capital stock, or effective control of Debtor’s voting capital stock, issued and outstanding from time to time, is not retained by the benefit holders of such stock on the date the Agreement is executed;
(xvi) If Debtor is a publicly held corporation, there shall be a change in the ownership of Debtor’s stock such that Debtor is no longer subject to the reporting requirements of the Securities Exchange Act of 1934 or no longer has a class of equity securities registered under Section 12 of the Securities Act of 1933;
(xvii) Debtor defaults under any agreement to pay Additional Indebtedness or any other financing arrangement between Debtor and a third party in an amount exceeding $100,000;
(xviii) Secured Party shall have determined in its creditorssole and good faith judgment that (a) it is the clear intention of Debtor’s investors to not continue to fund the Debtor in the amounts and timeframe necessary to enable Debtor to satisfy the Indebtedness as it becomes due and payable or (b) there is a material impairment in the perfection or priority of the Secured Party’s security interest in the Collateral; or
(vxix) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;[intentionally omitted]
(gxx) an involuntary case Without the prior written consent of Secured Party, which consent shall not be unreasonably withheld or other proceeding shall be commenced against delayed, Debtor creates, incurs, assumes or permits to exist any Indebtedness to Maxygen, Inc. (“Maxygen”) in excess of One Million, Two Hundred Twenty-Five Thousand Dollars ($1,225,000) in aggregate in any fiscal year, or Debtor makes any payments to Maxygen in any fiscal year in excess of the Guarantor or any Significant Subsidiary seeking lower of: (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 the aggregate of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectfair market value of services provided by Maxygen to Debtor during such fiscal year, or (ii) the appointment aggregate of a trusteeOne Million, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or Two Hundred Twenty-Five Thousand Dollars (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period$1,225,000). The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding Notwithstanding the foregoing, no Lease Event Debtor shall be permitted to pay the balance of Default under Section 16(mpreviously incurred, existing and anticipated Indebtedness to Maxygen up to a total amount of One Million, Five Hundred Thousand Dollars ($1,500,000) and no remedies under for the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingperiod January 1, 2005 to December 31, 2005.
Appears in 2 contracts
Sources: Master Security Agreement (Codexis Inc), Master Security Agreement (Codexis Inc)
Defaults. The occurrence of any one or more of the following events shall constitute a default by Borrower under this Note and shall be referred to as an "“Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):”:
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail If Borrower fails to make pay any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when amount due and payable under such Facility Lease or this Guaranty hereunder within five (5) business days after of the same shall become due thereunder; ordate when due;
(b) the Guarantor If Borrower otherwise fails to perform, keep or observe any term, provision, condition, covenant, warranty or representation contained in this Note or the RockGen Lessee shall fail Purchase Agreement which is required to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt be performed, kept or observed by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicableBorrower;
(c) The Guarantor If an Event of Default shall fail to comply with its covenants set forth in Section 3.3 have occurred under the Security Agreement (transfer of RockGen Lessee ownershipas defined below), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.;
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either If Borrower (i) a default by the Guarantor becomes insolvent or any Restricted Subsidiary under any instrument generally fails to pay, or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or admits in writing its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof inability to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or pay debts as they become due; (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instrumentsapplies for, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paidconsents to, or such default is not cured or waivedacquiesces in, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of trustee, receiver, sequestrator or other custodian for it or for all or substantially all any of its property;
(iv) makes , or make a general assignment for the benefit of its creditors; or
(viii) admits in writing its inability the absence of such application, consents or acquiescences, permits or suffers to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) exist the appointment of a trustee, receiver, liquidator, custodian sequestrator or other similar official with respect to custodian for it or any substantial part for all of its property thereof, and such trustee, receiver, sequestrator or other custodian shall not be discharged within 90 days, provided that it hereby expressly authorizes the Subordinated Lender to appear in any court conducting any relevant proceeding during such 90-day period to preserve, protect and defend Subordinated Lender’s rights under this Note; or (iiiiv) files for or permits or suffers to exist the winding-commencement of any bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law (including, without limitation, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, as amended from time to time), or any dissolution, winding up or liquidation proceeding, in respect of the Guarantor or it, and, if any such Significant Subsidiary; and such involuntary case or other proceeding is not commenced by it, such case or proceeding shall be consented to or acquiesced in by it or shall result in the entry of an order for relief or shall remain undismissed and unstayed for a period of 60 days90 days undismissed;
(he) If a default shall have occurred under any representation or warranty made by agreement between Borrower and any other third party lender to the Guarantor herein shall prove to have been incorrect Borrower, in any material respect when made or misleading each case if such default results in any material respect when made because the acceleration of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure maturity of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingunderlying indebtedness.
Appears in 2 contracts
Sources: Subordination Agreement (NXT-Id, Inc.), Subordination Agreement (NXT-Id, Inc.)
Defaults. The Each of the following events shall constitute an "Event of a Default" hereunder (whether any , whatever the reason for such event and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree judgment or order of any court or any order, rule rule, or regulation of any Governmental Entity):governmental or non-governmental body:
(a) the Guarantor Any representation or the RockGen Lessee warranty made under the Facility Lease this Agreement shall fail prove incorrect or misleading in any material respect when made or deemed to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; orhave been made;
(b) The Borrower shall default in the Guarantor payment of any principal, interest or other monetary amounts payable hereunder or under the RockGen Lessee shall fail to make Notes, or any of them, or under the other amount payable under any Operative Document after Loan Documents which payment default (other than payment due on the same shall become due thereunder and such failure shall have continued Maturity Date) is not cured within thirty (30) calendar days of Borrower's receipt of notice from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicableAdministrative Agent;
(c) The Guarantor Borrower shall fail default in the performance or observance of any other agreement or covenant contained in this Agreement not specifically referred to comply elsewhere in this Section 6.1, and such Event of Default shall not be cured to the Majority Banks' satisfaction within a period of ninety (90) days from the date the Borrower receives notice from the Administrative Agent with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.respect thereto;
(d) There shall occur any Event of Default in the Guarantor shall fail to perform performance or observe observance of any covenant, obligation agreement or agreement to be performed covenant or observed by it under breach of any Calpine Document representation or warranty contained in any of the Loan Documents (other than any covenant, obligation this Agreement or agreement referred to as otherwise provided in clauses (athis Section 6.1 of this Agreement) or (b) of this Section 7.1) in any material respectSubsidiary Guaranty, which shall continue unremedied not be cured to the Majority Banks' satisfaction within the applicable cure period, if any, provided for in such Loan Document or ninety (190) days from the date the Borrower receives notice from the Administrative Agent with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, thereto if no cure period is provided in such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereofLoan Document;
(e) there There shall have occurred either (i) be entered a default by the Guarantor decree or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to respect of the appointment of a Custodian of it Borrower or for all or substantially all any of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts Restricted Subsidiaries under Title 11 of the Bankruptcy Code United States Code, as now constituted or hereafter amended, or any bankruptcy, insolvency other applicable federal or state bankruptcy law or other similar law now or hereafter in effectlaw, or (ii) the appointment of appointing a trustee, receiver, liquidator, custodian assignee, trustee, custodian, sequestrator, or other similar official with respect to it of the Borrower or any of its Restricted Subsidiaries, or of any substantial part of its property their respective properties, or (iii) ordering the winding-up or liquidation of the Guarantor affairs of the Borrower or any of its Restricted Subsidiaries, or an involuntary petition shall be filed against the Borrower or any of its Restricted Subsidiaries, and a temporary stay entered, and (i) such Significant Subsidiary; petition and stay shall not be diligently contested, or (ii) any such involuntary case or other proceeding petition and stay shall remain continue undismissed and unstayed for a period of 60 thirty (30) consecutive days;
(hf) The Borrower or any of its Restricted Subsidiaries shall file a petition, answer, or consent seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy law or other similar law, make an assignment for the benefit of creditors, or the Borrower or any of its Restricted Subsidiaries shall consent to the institution of proceedings thereunder or to the filing of any such petition or to the appointment or taking of possession of a receiver, liquidator, assignee, trustee, custodian, sequestrator, or other similar official of the Borrower or any of its Restricted Subsidiaries, or of any substantial part of their respective properties, or the Borrower or any of its Restricted Subsidiaries shall fail generally to pay their respective debts as they become due, or the Borrower or any of its Restricted Subsidiaries shall take any corporate or partnership action to authorize any such action;
(g) A final judgment shall be entered by any court against the Borrower or any of its Restricted Subsidiaries for the payment of money which exceeds $1,000,000.00, which judgment is not covered by insurance or a warrant of attachment or execution or similar process shall be issued or levied against property of the Borrower or any of its Restricted Subsidiaries which, together with all other such property of the Borrower or any of its Restricted Subsidiaries subject to other such process, exceeds in value $1,000,000.00 in the aggregate, and if, within thirty (30) days after the entry, issue, or levy thereof, such judgment, warrant, or process shall not have been paid or discharged or bonded or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant, or process shall not have been paid or discharged;
(1) There shall be at any time any "accumulated funding deficiency," as defined in ERISA or in Section 412 of the Code, with respect to any Plan; or (2) a trustee shall be appointed by a United States District Court to administer any Plan; or the Pension Benefit Guaranty Corporation shall institute proceedings to terminate any Plan; or (3) any representation of the Borrower and its ERISA Affiliates shall incur any liability to the Pension Benefit Guaranty Corporation in connection with the termination of any Plan; or warranty made (4) any Plan or trust created under any Plan of any of the Borrower and its ERISA Affiliates shall engage in a non-exempt "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) which would subject the Borrower or any ERISA Affiliate to the tax or penalty on "prohibited transactions" imposed by Section 502 of ERISA or Section 4975 of the Code; and by reason of any or all of the events described in clauses (1) through (4), as applicable, the Borrower shall have incurred or is likely to incur liability in excess of $2,000,000.00 in the aggregate;
(i) All or any portion of any Loan Document shall at any time and for any reason be declared by a court of competent jurisdiction in a suit with respect to such Loan Document to be null and void, or a proceeding shall be commenced by any governmental authority involving a legitimate dispute or by the Guarantor herein Borrower or any of its Restricted Subsidiaries, having jurisdiction over the Borrower or any of its Restricted Subsidiaries, seeking to establish the invalidity or unenforceability thereof (exclusive of questions of interpretation of any provision thereof), or the Borrower or any of its Restricted Subsidiaries shall prove deny that it has any liability or obligation for the payment of principal or interest purported to have been incorrect in be created under any material respect when made Loan Document;
(j) There shall occur any Change of Control;
(k) Except for conveyances of all or misleading in any material respect when made because part of the omission to state a material fact Loan Inventory between the Borrower and the Guarantors there occurs any sale, lease, conveyance, assignment, pledge, encumbrance, or transfer of all or any part of the Loan Inventory or any interest therein, voluntarily or involuntarily, whether by operation of law or otherwise, except (i) in accordance with the terms of this Agreement, (ii) for execution of contracts with prospective purchasers, (iii) for Permitted Encumbrances, and (iv) in the ordinary course of business; or
(l) Except in the normal course of Borrower's development of inventory into Developed Lots and construction of Dwellings thereon, without the prior written consent of Administrative Agent, Borrower grants any easement or dedication, files any plat, condominium declaration, or restriction or otherwise encumbers all or any portion of the Loan Inventory, or seeks or permits any zoning reclassification or variance, unless such incorrect or misleading representation action is and continues to be material and unremedied for a period of 30 days after receipt expressly permitted by the Guarantor Loan Documents or does not affect any Inventory which is part of written notice thereof; providedthe Loan Inventory. Notwithstanding anything contained herein to the contrary, however, that if such condition canthe occurrence of any of the foregoing shall not be remedied a Default or an Event of Default hereunder if: (i) the occurrence pertains only to specific parcel(s) within the Loan Inventory; and (ii) the affected parcel(s) is (are) removed from the Loan Inventory on or before ten (10) days in the case of a monetary occurrence and thirty (30) days in the case of a non-monetary occurrence after the occurrence or, if the Borrower is entitled to notice and cure, within the applicable notice and cure period. In the event that any such 30-day periodparcel is a Lot Under Development, Developed Lot or Dwelling Lot, then the period within which to remedy such condition Loan Funding Availability shall be extended up to an additional 60 daysimmediately calculated excluding such parcel. If, so long as the Guarantor diligently pursues result of such remedy and removal, the outstanding principal balance under all Unsecured Indebtedness together with any unreimbursed draws under Letters of Credit would exceed the Loan Funding Availability, the Borrower shall pay (X) to the Administrative Agent on the Reconciliation Date immediately following the removal of such condition is reasonably capable of being remedied within Inventory from the Loan Inventory, a principal payment on the Loans in an amount sufficient to eliminate such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure excess of the RockGen Lessee to pay aggregate outstanding principal balance of all Unsecured Indebtedness and unreimbursed draws under Letters of Credit over the Loan Funding Availability, together with any due and unpaid interest on such excess or perform the same when it has become due (and, for the avoidance of doubt, without regard Y) add additional Inventory to the existence Loan Inventory (which is acceptable to the Administrative Agent) in an amount sufficient to cause the Loan Funding Availability to equal or exceed the Loans and unreimbursed draws under Letters of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingCredit.
Appears in 2 contracts
Sources: Loan Agreement (Horton D R Inc /De/), Master Loan and Inter Creditor Agreement (Horton D R Inc /De/)
Defaults. The If any of the following events ("Events of Default") shall constitute occur, then Lender may at its option and without demand or notice of any kind declare the Loans or any of them immediately due and payable.
(a) Borrowers or any of them fail to pay the principal or any interest or other fee due under the Loans, the Notes, the Debentures or Investment Agreement;
(b) Borrowers or any of them fail or neglect to perform, keep or observe any of their covenants, conditions or agreements contained in any of the subsections of this Agreement, the Debentures, the Investment Agreement or Registration Rights Agreement by and between Lender and CityXpress dated as of November 1, 2000 (the "Registration Rights Agreement") or become materially unable to provide support of the Collateral to licensees thereof;
(c) Any warranty or representation now or hereafter made by Borrowers or any of them in connection with this Agreement, the Debentures or the Investment Agreement is untrue or incorrect at any material respect when made or any schedule, certificate, statement, report, financial data, notice or writing furnished at any time by Borrowers or any of them to Lender is untrue or incorrect in any material respect, on the date as of which the facts set forth herein are stated or certified;
(d) A judgement and order requiring payment in excess of $50,000 shall be rendered against Borrowers or any of them and such judgment or order shall remain unsatisfied or undischarged and in effect for ninety (90) consecutive days without judicial enforcement or execution, provided that this subsection (d) shall not apply to any judgment for which Borrowers or any of them are fully insured and with respect to which the insurer has admitted in writing its liability for a full payment thereof;
(e) A notice of lev▇, ▇▇▇▇ ▇▇ assessment is filed or recorded with respect to all or substantial parts of the assets of Borrowers or any of them by any governmental authority, or any taxes or debts owing at any time or times hereafter to any one or more of them become a lien on all or a substantial part of any Borrower's property, and such lien, levy or assessment is not discharged or released within ten (10) days of a notice or attachment thereof;
(f) All or any part of any Borrower's property is attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes within the possession of any receiver, trustee, custodian, or assignee for the benefit of creditors and on or before the 60th day thereafter such assets are not returned to Borrowers or any of them and/or such writ, distress warrant or levy is not dismissed, stayed or lifted;
(g) Any proceeding under the United States bankruptcy laws or the laws of the Canada pertaining to insolvency or receivership is filed by or against Borrowers or any of them;
(h) Any proceeding under a bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or statute is filed by or against Borrowers or any of them or any Borrower makes an assignment for the benefit of creditors or Borrowers or any of them takes any corporate action to authorize any of the foregoing;
(i) Borrowers or any of them cease to conduct a material part of their business affairs in the ordinary course;
(j) Borrowers or any of them default in the performance of or compliance with any term, condition or covenant deemed an "Event of Default" hereunder (whether or words of similar import under this Agreement, the Notes, the Debentures, the Investment Agreement, or Registration Rights Agreement any such event shall be voluntary credit or involuntary loan agreement or come about or be effected by operation of law or pursuant to or in compliance facility with any judgmentthird-party lender, decree or order and Lender, after receipt of any court notice thereof from Borrowers, deems itself insecure as a result thereof;
(k) Borrowers or any orderof them fail to comply with the filing requirements of the Securities Exchange Act of 1934, rule or regulation of any Governmental Entity):as amended;
(al) Borrowers or any of them experience a change in or disagreement with Ernst & Young, L.L.P., including but not limited to a change in accountants, an adverse opinion, the Guarantor receipt of an opinion qualified or the RockGen Lessee under the Facility Lease modified as to uncertainty, audit scope or procedures, accounting principles or financial statement disclosure,, unless such change or disagreement shall fail not represent or pertain to make any payment with respect a material adverse change to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunderBorrowers' financial statements; or
(bm) the Guarantor or the RockGen Lessee CityXpress shall fail to make any other amount payable under any Operative Document after secure the same shall become due thereunder following "Qualifying Customer Agreements" between August 1, 2001 and such failure shall have continued from October 31, 2001: (i) agreement(s) with one or more new customers to launch CityXpress' products in a period minimum of ten four newspapers within eight weeks of the customer's signature of the agreement; (10ii) Business Days after receipt by agreements with customers of CityXpress prior to August 1, 2001, to launch CityXpress' products in a minimum of four newspapers; and (iii) agreements resulting in two new E-Team assisted launches per month in each of the RockGen Lessee months of August, September and October with newspapers, with CityXpress' E-Team providing training services for the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
newspaper's sales force. The agreements referred to in items (ci) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 and (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guarantyiii) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.subsection 9.1.1
Appears in 1 contract
Defaults. The Each of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):the Manager under this Agreement:
(ai) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such The failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail Manager to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) perform any material duty or 8.4 (assignment of Guaranty) obligation imposed upon it under this Agreement or any other material breach of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt Agreement by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through TrusteeManager; provided, however, that no such failure or breach shall be deemed to constitute an Event of Default unless such failure or breach continues for a period of thirty (30) days after the Manager's receipt of written notice from the Trust of such failure or breach or, if such condition canfailure or breach is not be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied cured within such additional 180-day said thirty (30)-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there Manager shall have occurred either failed diligently and in good faith to commence to cure the same within said thirty (i) a default by 30)-day period and to have diligently continued to prosecute the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary casesame;
(ii) consents to the entry of an order for relief against it in an involuntary case;The Manager's liquidation, bankruptcy or insolvency, including:
(iiiA) consents to the appointment filing of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary voluntary petition seeking (i) liquidation, reorganization reorganization, arrangement or other relief with respect to it or readjustment, in any form, of its debts under Title 11 of the Bankruptcy United States Code or any bankruptcy, other federal or state insolvency or other similar law now or hereafter in effectlaw, or its filing an answer consenting to or acquiescing in any such petition; or
(iiB) the appointment expiration of a trusteeninety (90) days after the filing of an involuntary petition under the Title 11 of the United States Code, receiver, liquidator, custodian or other similar official with respect to it or any substantial part involuntary petition seeking liquidation, reorganization, rearrangement or readjustment of its property debts under the federal or state insolvency law, provided that the same shall not have been vacated, set aside or stayed within such 90-day period; or
(iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made The commitment by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder Manager of any Beneficiary entitled to a payment act of any amount payable to itfraud, willful misconduct or gross negligence in connection with the performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingits duties hereunder.
Appears in 1 contract
Sources: Asset Management Agreement (First Union Real Estate Equity & Mortgage Investments)
Defaults. The In case of the happening of any of the following events shall constitute an "Event (herein called “Events of Default" hereunder ”):
SECTION 9.1.1. Any payment, whether for principal, interest, fees, charges, or otherwise, due with respect to any Advance shall not be paid (whether i) (other than pursuant to Section 2.1.2) on the date when due and payable (including the payment of the full principal balance of all Advances on the Facility Termination Date); or (ii) with respect to any such event shall be voluntary payments required under Section 2.1.2 within the two (2) Business Day period referenced in Section 2.1.2; or
SECTION 9.1.2. Any representation or involuntary warranty made by the Borrowers (or come about any of its officers) herein, or be effected in any certificate, agreement, instrument or statement contemplated by operation of law or made or delivered pursuant to or in compliance with connection herewith or therewith shall prove to have been incorrect when made in any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereundermaterial respect; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) SECTION 9.1.3. The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor Borrowers shall fail to perform or observe any covenantother term, obligation covenant or agreement contained herein or in any agreement or document executed or delivered in conjunction herewith or with the Advances, or any other Loan Document, on its part to be performed or observed by it under and any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue such failure remains unremedied for thirty (130) days after written notice thereof shall have been given to the Borrowers specifying such failure by the Lender, except with respect to Sections 5.4, 7.6, 7.12 and all subsections of Section 8 (except with respect to Section 8.7 as to involuntary Liens) with respect to which no notice and cure period shall be required; or
SECTION 9.1.4. This Agreement shall, at any time after its execution and delivery, for any reason cease to be in full force and effect (unless such occurrence is in accordance with its terms or after payment thereof or except as a result of the Guarantor's guaranty ofLender’s default hereunder) or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by the Borrowers or the Borrowers shall deny that it has any further liability or obligation hereunder; or
SECTION 9.1.5. Any judgment, writ, warrant of attachment or execution or similar process shall be issued or levied in respect of the Operating Account or any other account maintained by the Borrowers at the Lender, other than an Excepted Accounts, and agreement with respect to, any nonmonetary obligation, covenant shall not be discharged or agreement released within thirty (30) days; or
SECTION 9.1.6. Any of the RockGen Lessee under any of the Operative DocumentsBorrowers, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee CCG or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition CHC shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant adjudicated bankrupt or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paidinsolvent, or such default is not cured admit in writing its inability to pay its debts as they mature, or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of make an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability or any such Person shall fail generally to generally pay its debts as such debts become duedue and payable; or takes any comparable action under any foreign laws relating such Person shall apply for or consent to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, any receiver, liquidatortrustee, custodian or other similar official with respect to officer for it or for all or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor property; or such Significant Subsidiary; receiver, trustee, custodian or similar officer shall be appointed without the application or consent of such Person, as the case may be, and such involuntary case or other proceeding appointment shall remain undismissed and unstayed continue undischarged for a period of 60 sixty (60) days;
; or any such Person shall institute (hby petition, application, answer, consent or otherwise) any representation bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or warranty made similar proceeding relating to it under the laws of any jurisdiction; or any such proceeding shall be instituted (by the Guarantor herein petition, application or otherwise) against any such Person and shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied remain undismissed for a period of 30 sixty (60) days; or any judgment, writ, warrant of attachment or execution or similar process shall be issued or levied in respect of an obligation (alleged or otherwise) of any such Person against any property or asset of such Person with a value in excess of $1,000,000 and such judgment, writ or similar process shall not be released, vacated, stayed or fully bonded within sixty (60) days after receipt by its issue or levy; or
SECTION 9.1.7. The Borrowers shall receive a notice or declaration of default with respect to the Guarantor payment when due of written any principal of or interest on any of their other Debts in an amount in excess of $1,000,000 (except for Debts being contested in good faith for which adequate reserves have been established) or the Borrowers shall receive a notice thereofor declaration of default with respect to any event specified in any note, agreement, indenture or other document evidencing or relating to any such Debt, if the effect of such event is to cause, or (with the giving of any notice or the lapse of time or both) to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holder or holders) to cause, such Debt to become due, or to be prepaid in full, prior to its stated maturity; providedor
SECTION 9.1.8. An event or condition occurs or exists with respect to any Plan concerning which the Borrowers are under an obligation to furnish a report to the Lender in accordance with Section 7.7.9 and as a result of such event or condition, howevertogether with all other such events or conditions, that if such condition cannot be remedied within such 30-day periodthe Borrowers, then or any ERISA Affiliate has incurred or in the period within which to remedy such condition shall be extended up to an additional 60 days, so long as opinion of the Guarantor diligently pursues such remedy and such condition Lender is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled likely to incur a liability to a payment Plan or the PBGC (or any combination of the foregoing) which is material in relation to the financial position of the Borrowers; or
SECTION 9.1.9. Any of the Borrowers shall terminate its existence or suspend or discontinue its business; or
SECTION 9.1.10. There shall occur a default beyond applicable notice and cure periods under the BofA Warehouse Facility (or replacement warehouse lines of credit that constitute Warehousing Debt under this Agreement); or
SECTION 9.1.11. There shall occur an event of default under any amount payable to itother agreement, understanding or credit accommodation between or among the Lender, on one hand, and one or more of a Borrower, or performance any Subsidiary of such Borrower, on the other hand. then, and in every such event and at any obligationtime thereafter during the continuance of such event, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by Lender shall have the Guarantor immediately upon any failure rights described in the following subsections of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under this Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing9.
Appears in 1 contract
Sources: Mortgage Warehouse Loan and Security Agreement (Centerline Holding Co)
Defaults. The occurrence of any of the following events shall constitute an Event of Default hereunder:
(a) Any representation, warranty or statement of the Seller, the Indenture Trustee, the Servicer, the Issuer or the Depositor made in this Insurance Agreement or in any other Transaction Document or any certificate, report or other writing delivered pursuant hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made, and the incorrectness of such representation, warranty or statement has a material adverse effect on the Trust Estate or the interest of the Insurer and such representation, warranty or statement shall not have been eliminated or otherwise cured within 45 days of the earlier of (i) the date on which the Indenture Trustee, the Issuer, the Servicer, the Seller or the Depositor gives notice of such failure to the Indenture Trustee or the Insurer and (ii) the date on which written notice thereof shall have been given to the Indenture Trustee, the Issuer, the Servicer, the Seller or the Depositor by the Trustee or the Insurer;
(i) The Servicer, the Indenture Trustee, the Seller, the Issuer or the Depositor shall fail to pay when due any amount payable by the Servicer, the Indenture Trustee, the Seller or the Depositor hereunder or (ii) a legislative body has enacted any law that declares or a court of competent jurisdiction shall find or rule that this Insurance Agreement or any of the Transaction Documents are not valid and binding on the Servicer, the Indenture Trustee, the Seller, the Issuer or the Depositor;
(c) The occurrence and continuance of an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value Indenture (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicabledefined therein);
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) Any failure on the Guarantor shall fail part of the Servicer, the Indenture Trustee, the Seller, the Issuer or the Depositor duly to observe or perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respectrespect any other of the covenants or agreements on the part of the Servicer, the Indenture Trustee, the Seller, the Issuer or the Depositor contained in this Insurance Agreement or in any other Transaction Document which shall continue continues unremedied for (1) a period of 45 days with respect to the Guarantor's guaranty ofthis Insurance Agreement, and agreement with respect toor, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligationTransaction Document, covenant beyond any cure period provided for therein, after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer, the Seller, the Issuer, or agreement hereunderthe Depositor, 30 days after receipt as applicable, by the Guarantor of written notice thereofInsurer (with a copy to the Indenture Trustee) or by the Indenture Trustee (with a copy to the Insurer);
(e) there shall have occurred either (i) A decree or order of a default by the Guarantor court or any Restricted Subsidiary under any instrument agency or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) supervisory authority having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or jurisdiction in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it premises in an involuntary case;
(iii) consents to case under any present or future federal or state bankruptcy, insolvency or similar law or the appointment of a Custodian of it conservator or for all receiver or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian liquidator or other similar official with respect to it in any insolvency, readjustment of debt, marshalling of assets and liabilities or any substantial part of its property similar proceedings, or (iii) for the winding-up or liquidation of its affairs, shall have been entered against the Guarantor Servicer, the Seller, the Issuer or such Significant Subsidiary; the Depositor and such involuntary case decree or other proceeding order shall remain undismissed and have remained in force undischarged or unstayed for a period of 60 90 consecutive days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 1 contract
Sources: Insurance Agreement (Ace Securities Corp Home Loan Trust 1999 a Asset Backed Note)
Defaults. The 17.01. Each of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary deemed a “default” by Lessee:
A. Lessee’s failure to pay any installment of rent or involuntary to pay any additional rent, which failure persists after the expiration of thirty (30) days from the date Lessor gives notice to Lessee of the existence of such failure;
B. Lessee’s failure to observe or come about perform any of its other obligations under the other terms, covenants, or conditions of this Lease, which failure persists after the expiration of thirty (30) days from the date Lessor gives notice to Lessee of the existence of that failure, but, if the matter that is the subject of the notice is of such a nature that it cannot be effected by operation reasonably corrected within thirty (30) days, then no default shall be deemed to have occurred if Lessee commences the curing of law or pursuant the default within such thirty (30) day period and diligently prosecutes the same to or in compliance with any judgmentcompletion; however, decree or order of any court or any orderif the default is one relating to a matter that exposes space, rule or regulation of any Governmental Entity):
(a) the Guarantor occupants or the RockGen public to a danger to safety or health of which the public authorities have given due notice to Lessee, then such shorter notice to Lessee, whether written or otherwise, shall be sufficient as the circumstances demand with the responsibility of Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days take corrective measures forthwith;
C. Lessee’s failure, after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt days’ notice thereof by Lessor, to pay or cause to be paid, before any fine, penalty, interest or cost may be added thereto, any Imposition or insurance premium payable by Lessor.
D. The commencement of a proceeding against Lessee seeking reorganization, liquidation, dissolution or similar relief in an involuntary case under any applicable bankruptcy, insolvency or other similar law or code now or hereafter in effect which proceeding remains undismissed for a period of sixty (60) days, or the RockGen Lessee and the Guarantor entry of written notice a decree of such failure by the RockGen Lessee and/or the Guarantororder in any court appointing a receiver, as applicable;
liquidator, assignee, custodian, trustee, sequestrator (c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guarantysimilar official) of this GuarantyLessee or of any substantial part of its property, or ordering the winding-up or liquidation of its affairs, which decree or order shall remain unstayed and in effect for a period of sixty (60) days.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed E. Commencement by it Lessee of a voluntary case under any Calpine Document (applicable bankruptcy, insolvency or other than any covenant, obligation similar law or agreement referred to code now or hereafter in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paideffect, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents Lessee’s consent to the entry of an order for relief against it in an involuntary case;
(iii) consents case under any such law or code, or consent to the appointment of or taking possession by a Custodian receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of it Lessee or for all or substantially all of any substantial part of its property;
(iv) makes a , or the making by Lessee of any general assignment for the benefit of its creditors; or
(v) admits in writing its inability , or failure generally to generally pay its debts as such debts they become due; , or takes the taking by Lessee of any comparable corporate or partnership action under in furtherance of any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 1 contract
Sources: Lease (Morgans Hotel Group Co.)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) This lease is upon the Guarantor condition that if TENANT shall neglect or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which TENANT’S covenants herein and said breach shall continue unremedied for fourteen (114) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement days after written notice of the RockGen Lessee under any of same from LANDLORD to TENANT; or if such breach is the Operative Documentsfailure to pay rent, 30 then fourteen (14) days after receipt by such written notice; or if the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition leasehold hereby created shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable taken on execution or by other process of being remedied within such additional 180-day period, and (2) with respect to law; or if any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor assignment shall be made of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment TENANT’S property for the benefit of its creditors; oror if a petition is filed by TENANT under any bankruptcy law; or if a petition is filed against TENANT under any bankruptcy law and the same shall not be dismissed within thirty (30) days from the date upon which it is filed, then, and in any of said cases, LANDLORD lawfully may then enter, or at any time thereafter and without demand or notice, upon the Demised Premises or any part thereof in the name of the holder, and repossess the same as LANDLORD’S former estate and expel TENANT and those claiming through or under TENANT and remove its effects, forcibly if necessary, without being guilty of any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant, and, upon such entry, this lease shall terminate.
(vb) admits in writing its inability to generally pay its debts as In case of any such debts become duetermination, TENANT will indemnify LANDLORD each month against all loss of rent and all obligation which LANDLORD may incur by reason of any such termination between the time of termination and the expiration of the term of the lease; or takes at the election of LANDLORD, exercised at the time of the termination or at any comparable action under any foreign laws relating time thereafter, TENANT will indemnify LANDLORD each month until the exercise of the election against all loss of rent and other obligations which LANDLORD may incur by reason of such termination during the period between the time of the termination and the exercise of the election, and upon the exercise of the election TENANT will pay to insolvency;
(g) an involuntary case or other proceeding the LANDLORD as damages such amount as at the time of the exercise of the election represents the amount by which the rental value of the Demised Premises for the period from the exercise of the election until the expiration of the term shall be commenced against less than the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or amount of rent and other relief with respect payments provided herein to it or its debts under Title 11 be paid by TENANT to LANDLORD during said period. It is understood and agreed that at the time of the Bankruptcy Code termination or at any bankruptcytime thereafter LANDLORD may rent the Demised Premises, insolvency or other similar law now or hereafter in effect, or (ii) and for a term which may expire after the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation expiration of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period term of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; this lease, provided, however, that if such condition cannot be remedied within such 30-day period, said premises are rented as aforesaid then the period within which to remedy amount of rent received in such condition case shall be extended up applied to an additional 60 daysreduce TENANT'S liability for rent under this lease; that TENANT shall be liable for any expenses incurred by LANDLORD in connection with obtaining possession of the Demised Premises, so long as with removing from the Guarantor diligently pursues such remedy Demised Premises property of TENANT and such persons claiming under it (including warehouse charges), with putting the Demised Premises into good condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) for reletting, and (b) above with any reletting, including, but without limitation, reasonable attorneys' fees and brokers' fees, and that any monies collected from any reletting shall not affect in any way be applied first to the right hereunder of any Beneficiary entitled foregoing expenses and then to a the payment of any amount payable rent and all other payments due from TENANT to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingLANDLORD.
Appears in 1 contract
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event It shall be voluntary a default ("Default") under the Loan Document if (i) any principal, interest or involuntary other amount of money due under this Note is not paid in full when due, in accordance with the terms and conditions of the Loan Agreement, regardless of how such amount may have become due; (ii) any covenant, agreement, condition, representation or come about warranty herein is not fully and timely performed, observed or be effected by operation kept; or (iii) there shall occur any default or event of law or default under the Loan Document, which is not cured pursuant to or the terms and provisions therein. Upon the occurrence of a Default, Lender shall have any and all rights and remedies set forth in compliance the Loan Agreement, including without limitation the right (A) to declare in accordance with any judgmentthe Loan Agreement the unpaid principal balance and accrued but unpaid interest on this Note, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee and all other amounts due hereunder and under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when Loan Document, at once due and payable under (upon such Facility Lease or this Guaranty within five (5) days after declaration, the same shall become be at once due thereunder; or
and payable), (bB) to foreclose any liens and security interests securing payment thereof and (C) to exercise any of its other rights, powers and remedies under the Guarantor Loan Document, or at law or in equity. All of Rights of Lender provided for in the RockGen Lessee Loan Document are cumulative of each other and of any and all other Rights at law or in equity. The resort to any Right shall fail to make not prevent the concurrent or subsequent employment of any other amount appropriate Right. No single or partial exercise of any Right shall exhaust it, or preclude any other or further exercise thereof, and every Right may be exercised, subject to the terms of the Subordination Agreement, at any time and from time to time. No failure by Lender to exercise, nor delay in exercising any Right, including but not limited to the right to accelerate the maturity of this Note, shall be construed as a waiver of any Default or as a waiver of any Right. Without limiting the generality of the foregoing provisions, the acceptance by Lender from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable under any Operative Document after at the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice time of such failure by the RockGen Lessee and/or the Guarantorpayment, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) constitute a default by waiver of or impair or extinguish the Guarantor right of Lender to accelerate the maturity of this Note or, to exercise any other Right at the time or at any Restricted Subsidiary under subsequent time, or nullify any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due exercise of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectRight, or (ii) constitute a waiver of the appointment requirement of punctual payment and performance or a trusteenovation in any respect. If any holder of this Note retains an attorney in connection with any Default or at maturity of this Note or to collect, receiverenforce or defend the Loan Document in any lawsuit or in any probate, liquidatorreorganization, custodian bankruptcy, arbitration or other similar official proceeding, or if Borrower sues any holder in connection with respect the Loan Document and does not prevail, then Borrower agrees to it pay to each such holder, in addition to principal, interest and any other sums owing to Lender hereunder and under the Loan Document, all costs and expenses incurred by such holder in trying to collect this Note or in any such suit or proceeding, including, without limitation, attorneys' fees and expenses, investigation cost and all court costs, whether or not suit is filed hereon, whether before or after the payment due dates as provided in Section 1, or whether in connection with bankruptcy, insolvency or appeal, or whether collection is made against Borrower or any substantial part of its property guarantor or (iii) the winding-up endorser or liquidation of the Guarantor any other person primarily or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingsecondarily liable hereunder.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute a default by Borrower under this Note and shall be referred to as an "“Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):”:
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail If Borrower fails to make pay any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when amount due and payable under such Facility Lease or this Guaranty hereunder within five (5) business days after of the same shall become due thereunder; ordate when due;
(b) the Guarantor If Borrower otherwise fails to perform, keep or observe any term, provision, condition, covenant, warranty or representation contained in this Note or the RockGen Lessee shall fail Purchase Agreement which is required to make any other amount payable under any Operative Document after the same shall become due thereunder be performed, kept or observed by Borrower and such failure shall have continued from a period of ten continues for fifteen (1015) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor delivery of written notice thereof;
(ec) there If an Event of Default shall have occurred either under the Security Agreement (as defined below);
(d) If Borrower (i) a default by the Guarantor becomes insolvent or any Restricted Subsidiary under any instrument generally fails to pay, or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or admits in writing its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof inability to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or pay debts as they become due; (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instrumentsapplies for, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paidconsents to, or such default is not cured or waivedacquiesces in, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of trustee, receiver, sequestrator or other custodian for it or for all or substantially all any of its property;
(iv) makes , or make a general assignment for the benefit of its creditors; or
(viii) admits in writing its inability the absence of such application, consents or acquiescences, permits or suffers to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) exist the appointment of a trustee, receiver, liquidator, custodian sequestrator or other similar official with respect to custodian for it or any substantial part for all of its property thereof, and such trustee, receiver, sequestrator or other custodian shall not be discharged within 90 days, provided that it hereby expressly authorizes the Subordinated Lender to appear in any court conducting any relevant proceeding during such 90-day period to preserve, protect and defend Subordinated Lender’s rights under this Note; or (iiiiv) files for or permits or suffers to exist the winding-commencement of any bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law (including, without limitation, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, as amended from time to time), or any dissolution, winding up or liquidation proceeding, in respect of it, and, if any such case or proceeding is not commenced by it, such case or proceeding shall be consented to or acquiesced in by it or shall result in the entry of an order for relief or shall remain for 90 days undismissed.
(e) If a default shall have occurred under any agreement between Borrower and any other third party lender to the Borrower, in each case if such default results in the acceleration of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because maturity of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingunderlying indebtedness.
Appears in 1 contract
Defaults. The In addition to any other Events of Default, Defaults, defaults or Events of Acceleration provided for in the Loan Documents, and without waiver of the demand and discretionary provisions of the Loan Documents, the occurrence of any of the following events shall constitute constitutes an "Event of Default" hereunder , a Default, a default, and an Event of Acceleration under this Agreement (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entityand each Loan Document):
(a) the Guarantor If any Party fails to comply with any term or condition in this Agreement (or any agreement referred to or incorporated herein) or the RockGen Lessee under Loan Documents (other than the Facility Lease shall fail to make Existing Defaults), or any payment with respect to Periodic Rent other document or the Termination Value (including the Equity Portion of Termination Value agreement between any Party and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; orLender.
(b) the Guarantor If any material adverse change occurs in any Party's financial condition or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;business prospects.
(c) The Guarantor If any lender, supplier, creditor, lessor, bond holder or representative thereof (collectively, "Creditor") of any Party shall fail to comply (i) obtain a judgment against any Party in excess of $100,000 in the aggregate (with its covenants set forth the exception of the American Monitor judgment against ▇▇▇▇▇▇▇▇ in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor mergeran amount not exceeding $300,000) or 8.4 (assignment ii) receive from Borrower any prepayments of Guaranty) of this Guarantyobligations.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) If any representation or warranty made by any Party in this Agreement or in connection with the Guarantor herein shall prove to have been incorrect in any material respect when negotiation hereof is materially untrue as of the date made or misleading in hereafter becomes materially untrue.
(e) If any material respect when made because party attaches by way of seizure, ▇▇▇▇, ▇▇▇▇ or otherwise of any assets of any one or more of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by Parties.
(f) If the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder filing of any Beneficiary entitled to notice of lien, levy or assessment by any government, department or agency or the fact that any taxes or debts are owing become a payment lien or encumbrance upon any assets of any amount payable one or more of the Parties.
(g) If the Tax Liens listed on Exhibit A are not resolved satisfactory to itLender in Lender's sole discretion by no later than August 15, or performance 1999.
(h) If Borrower is not in good standing in the state of any obligationDelaware and shows Lender evidence to that fact, satisfactory to Lender in Lender's sole discretion, by the RockGen Lessee under any Operative Document to demand prompt payment thereofno later than August 15, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing1999.
Appears in 1 contract
Sources: Amendment and Waiver Agreement (Art Renaissance Inc)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) It shall be a default ("Default") under this Note and each of ------- the Guarantor other Loan Documents if (i) any principal, interest or the RockGen Lessee other amount of money due under this Note is not paid in full when due, regardless of how such amount may have become due; (ii) any covenant, agreement, condition, representation or warranty herein or in any other Loan Document is not fully and timely performed, observed or kept; or (iii) there shall occur any default or event of default under the Facility Lease Deed or any other Loan Document that extends beyond any applicable cure or grace period. Upon the occurrence of a Default, subject to the terms of Section 4.2 of the Deed, Administrative Agent on behalf of the Lenders shall fail have the rights to make any payment with respect to Periodic Rent or declare the Termination Value (including unpaid principal balance and accrued but unpaid interest on this Note, and all other amounts due hereunder and under the Equity Portion of Termination Value and Debt Portion of Termination Value) when other Loan Documents, at once due and payable under (and upon such Facility Lease or this Guaranty within five (5) days after declaration, the same shall become be at once due thereunder; orand payable), to foreclose any liens and security interests securing payment hereof and to exercise any of its other rights, powers and remedies under this Note, under any other Loan Document, or at law or in equity.
(b) All of the Guarantor or rights, remedies, powers and privileges (together, "Rights") of Administrative Agent on behalf of the RockGen Lessee shall fail to make Lenders provided for in this ------ Note and in any other amount Loan Document are cumulative of each other and of any and all other Rights at law or in equity. The resort to any Right shall not prevent the concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall exhaust it, or preclude any other or further exercise thereof, and every Right may be exercised at any time and from time to time. No failure by Administrative Agent or any Lender to exercise, nor delay in exercising any Right, including but not limited to the right to accelerate the maturity of this Note, shall be construed as a waiver of any Default or as a waiver of any Right. Without limiting the generality of the foregoing provisions, the acceptance by Lender from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable under any Operative Document after at the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice time of such failure by the RockGen Lessee and/or the Guarantorpayment, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) constitute a default by waiver of or impair or extinguish the Guarantor right of Administrative Agent or any Restricted Subsidiary under Lender to accelerate the maturity of this Note or to exercise any instrument other Right at the time or instruments under which there is at any subsequent time, or may be secured or evidenced nullify any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due exercise of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectRight, or (ii) constitute a waiver of the appointment requirement of punctual payment and performance or a trusteenovation in any respect.
(c) If Lender retains an attorney in connection with any Default or at maturity or to collect, receiverenforce or defend this Note or any other Loan Document in any lawsuit or in any probate, liquidatorreorganization, custodian bankruptcy, arbitration or other similar official proceeding, or if Borrower sues Lender in connection with respect to it this Note or any substantial part of its property other Loan Document and does not prevail, then Borrower agrees to pay to Lender, in addition to principal, interest and any other sums owing to Lender hereunder and under the other Loan Documents, all costs and expenses incurred by Lender in trying to collect this Note or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made such suit or misleading in any material respect when made because of proceeding, including, without limitation, reasonable attorneys' fees and expenses actually incurred by Lender, investigation costs and all court costs, whether or not suit is filed hereon, whether before or after the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to itMaturity Date, or performance of any obligationwhether in connection with bankruptcy, by the RockGen Lessee under any Operative Document to demand prompt payment thereofinsolvency or appeal, or performance thereof, by the Guarantor immediately upon whether collection is made against Borrower or any failure of the RockGen Lessee to pay guarantor or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of endorser or any cure other person primarily or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingsecondarily liable hereunder.
Appears in 1 contract
Sources: Construction Loan Agreement (Wells Real Estate Investment Trust Inc)
Defaults. The Any one or more of the following events shall constitute an be considered "Event Events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor", as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition said term is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Lawused herein:
(i) commences if First Union shall be adjudged an involuntary bankrupt, or a voluntary case;decree or order approving, as properly filed, a petition or answer filed against First Union asking reorganization of First Union under the Federal bankruptcy laws (as now or hereafter amended), or under the laws of any State, shall be entered, and any such decree or judgment or order shall not have been vacated, stayed, or set aside within sixty (60) days from the date of the entry or granting thereof; or
(ii) consents if First Union shall file, or admit the jurisdiction of the court and the material allegations contained in, any petition in bankruptcy, or any petition pursuant, or purporting to be pursuant, to the entry of an order Federal bankruptcy laws (now or hereafter amended), or First Union shall institute any proceedings for relief against it in an involuntary case;of First Union under any bankruptcy or insolvency laws, or any laws relating to the relief of debtors, readjustment of indebtedness, reorganization, arrangements, composition, or extension; or
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general if First Union shall make any assignment for the benefit of creditors, or shall apply for, or consent to, the appointment of a receiver for First Union or any of the property of First Union; or
(iv) if First Union shall admit in writing its creditorsinability to pay its debts as they become due; or
(v) admits if the Sublet Premises are subject to any lien or levy; or
(vi) if a decree or order appointing a receiver of the property of First Union shall be made, and such decree or order shall not have been vacated, stayed or set aside within sixty (60) days from the date of entry or granting thereof; or
(vii) if First Union shall default in any payment required to be made by First Union hereunder when due as herein provided, and such default shall continue for ten (10) days after notice thereof in writing its inability to generally pay its debts as such debts become dueFirst Union; or takes any comparable action under any foreign laws relating to insolvency;or
(gviii) an involuntary case if First Union shall, by its act or other proceeding omission to act, cause a default under the Prime Lease, and such default shall not be commenced against cured within the Guarantor or time, if any, permitted for such cure under the Prime Lease, as applicable; or
(ix) if First Union shall default in any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcyother covenants and agreements herein contained to be kept, insolvency or other similar law now or hereafter in effectobserved and performed by First Union, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding default shall remain undismissed and unstayed continue for a period of 60 days;
twenty (h20) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which thereof in writing to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingFirst Union.
Appears in 1 contract
Defaults. The occurrence of any of the following events shall constitute an Event of Default:
(a) Any representation or warranty made by the Company, the Transferor or the Servicer hereunder or under the Transaction Documents, or in any certificate furnished hereunder or under the Transaction Documents, shall prove to be untrue or incomplete in any material respect;
(i) The Company or the Transferor shall fail to pay when due any amount payable by the Company or the Transferor hereunder or (ii) a legislative body has enacted any law that declares or a court of competent jurisdiction shall find or rule that any of the Transaction Documents are not valid and binding on the Company, the Servicer or the Transferor to which it is a party;
(c) The occurrence and continuance of a "Servicer Event of Default" under the Servicing Agreement (as defined therein) or of an "Event of Default" hereunder under the Trust and Security Agreement (whether as defined therein);
(d) Any failure on the part of the Company, the Transferor or the Servicer duly to observe or perform in any such event shall be voluntary material respect any other of the covenants or involuntary agreements on the part of the Company, the Transferor or come about or be effected by operation of law or pursuant to the Servicer contained in this Agreement or in compliance with any judgment, decree or order other Transaction Document which continues unremedied for a period of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) 45 days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of date on which written notice of such failure failure, requiring the same to be remedied, shall have been given to the Company, the Transferor or the Servicer, as the case may be, by the RockGen Lessee and/or Insurer (with a copy to Trustee) or by the Guarantor, as applicableTrustee (with a copy to the Insurer);
(ce) The Guarantor Any material party thereto shall breach any material representation or warranty or fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation material covenant or agreement to be performed or observed by it under contained in any Calpine Transaction Document (other than any covenant, obligation or agreement referred to in clauses except for the obligations described under paragraph (a) or (bc) of this Section 7.1) in any material respectabove), which and such failure shall continue unremedied for (1) with respect a period of 45 days after written notice given to the Guarantor's guaranty ofCompany or such other party, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, howeverprovided that, if such condition failure shall be of a nature that it cannot be remedied cured within 45 days, such failure shall not constitute an Event of Default hereunder if within such 3045-day periodperiod the Company or such other party shall have given notice to the Insurer of corrective action it proposes to take, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition corrective action is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt agreed in writing by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness Insurer to be due satisfactory and payable prior to its Stated Maturity, unless the Company or such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any other party shall thereafter pursue such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or corrective action diligently until such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such defaultcured;
(f) A decree or order of a court or agency or supervisory authority having jurisdiction in the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it premises in an involuntary case;
(iii) consents to case under any present or future federal or state bankruptcy, insolvency or similar law or the appointment of a Custodian of it conservator or for all receiver or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian liquidator or other similar official with respect to it in any insolvency, readjustment of debt, marshaling of assets and liabilities or any substantial part of its property similar proceedings, or (iii) for the winding-up or liquidation of its affairs, shall have been entered against the Guarantor Company, the Transferor or such Significant Subsidiary; the Servicer and such involuntary case decree or other proceeding order shall remain undismissed and have remained in force undischarged or unstayed for a period of 60 90 consecutive days;
(g) The Company, the Transferor or the Servicer shall consent to the appointment of a conservator or receiver or liquidator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Company, the Transferor or the Servicer or of or relating to all or substantially all of the property of either; or
(h) The Company, the Transferor or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of or otherwise voluntarily commence a case or proceeding under any representation applicable bankruptcy, insolvency, reorganization or warranty made by other similar statute, make an assignment for the Guarantor herein shall prove to have been incorrect in any material respect when made benefit of its creditors or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a voluntarily suspend payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingits obligations.
Appears in 1 contract
Defaults. The (a) Any of the following events shall constitute an "Event of Default" hereunder ":
(whether i) The Company defaults in the payment of (A) any such event shall be voluntary or involuntary or come about or be effected by operation part of law or pursuant to or in compliance with any judgment, decree or order the principal of any court or any orderNote, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
and payable, whether at maturity or at a date fixed for prepayment or by acceleration or otherwise, or (bB) the Guarantor or the RockGen Lessee shall fail to make interest on any other amount payable under any Operative Document after Note, when the same shall become due thereunder and payable, and such failure default in the payment of interest shall have continued from a period of ten for five (105) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through TrusteeDays; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;or
(ii) consents the Company defaults in the performance of any other agreement or covenant contained in the Purchase Agreement or Exchange Agreement, and such default shall not have been remedied within thirty (30) days after written notice thereof shall have been given to the entry Company by any holder of an order for relief against it in an involuntary case;this Note (the Company to give forthwith to all other holders of this Note at the time outstanding written notice of the receipt of such notice, specifying the default referred to therein); or
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any material representation or warranty made by the Guarantor herein shall prove Company herein, in the Purchase Agreement, the Exchange Agreement or in any certificate delivered by the Company pursuant hereto proves to have been incorrect in any material respect when made made; or
(iv) the Company or misleading any Subsidiary shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts; or a receiver or trustee is appointed for the Company or any material respect when made because Subsidiary or for substantially all of its assets and, if appointed without its consent, such appointment is not discharged or stayed within sixty (60) days; or proceedings under any law relating to bankruptcy, insolvency or the reorganization or relief of debtors are instituted by or against the Company or any Subsidiary, and, if contested by it, are not dismissed or stayed within sixty (60) days; or any writ of attachment or execution or any similar process is issued or levied against the Company or any Subsidiary or any of its property and is not released, stayed, bonded or vacated within sixty (60) days after its issue or levy; or the Company or any Subsidiary takes corporate or limited liability company action in furtherance of any of the omission foregoing.
(b) If an Event of Default occurs pursuant to state a material fact any of clauses (i) through (iii) of Section 5(a) of this Note then and in each such incorrect event and with the concurrence of holders of 67% of the Notes any holder of this Note (unless all Events of Default shall theretofore have been waived or misleading representation is and continues remedied) at its option, by written notice or notices to the Company, may declare this Note to be material due and unremedied payable. If an Event of Default occurs pursuant to clause (iv) of Section 5(a) of this Note, this Note shall automatically and without further action become due and payable. Upon any such declaration (or as to such clause (v) upon its occurrence) this Note shall forthwith immediately mature and become due and payable. However, the foregoing acceleration rights are subject to the following:
(i) if, at any time after the principal of this Note shall so become due and payable and prior to the date of maturity stated in this Note, all interest on this Note (with interest at the rate specified in this Note on any overdue principal and, if applicable, on any overdue interest) shall be paid to the holder of this Note by or for a period the account of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day periodCompany, then the period Note holder, by written notice or notices to the Company, may waive such Event of Default and its consequences and rescind or annul any such declaration, but no such waiver shall extend to or affect any subsequent Event of Default or impair any right or remedy resulting therefrom;
(ii) if any holder or holders of Notes which, at the time, holds or hold at least sixty-seven percent (67%) in aggregate principal amount of the Notes then outstanding exercises the above rights of acceleration, then the Company shall notify each other holder of Notes of the fact of such acceleration and each other holder shall, without limiting any other rights hereunder, (A) have the right for thirty (30) days after such notice from the Company to accelerate its own Notes based on the Event or Events of Default on which such acceleration was based (regardless of whether such Event or Events of Default are then continuing), unless at the time there are no outstanding Events of Default and any acceleration of any Notes has been rescinded or (B) be deemed automatically (without any action by such holder) to have accelerated its Notes if such holder has not received such notice of an acceleration from the Company within ten (10) business days after such acceleration; provided that any such automatic acceleration may take place regardless of whether the Event or Events of Default on which the initial acceleration was based are then continuing but such automatic acceleration shall not take place if at the time any and all accelerations of any Notes have been rescinded or annulled pursuant to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and subparagraph (bi) above or otherwise;
(iii) any holder may at any time rescind and annul any acceleration with respect to its own Notes; and
(iv) if any holder of a Note shall not affect in give any way the right hereunder of notice or take any Beneficiary entitled other action with respect to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease claimed Event of Default); provided, howeverthe Company, notwithstanding forthwith upon receipt of such notice or obtaining knowledge of such other action, will give written notice thereof to all other holders of the foregoingNotes then outstanding, no Lease describing such notice or other action and the nature of the claimed Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingDefault.
Appears in 1 contract
Defaults. The following events shall constitute an "Event Events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):":
(a) The failure of the Guarantor Common Stock to be listed on the NASDAQ, The New York Stock Exchange, Inc. or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion The American Stock Exchange, Inc. for a period of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunderconsecutive trading days; or
(b) Trading in the Guarantor Common Stock is suspended on the NASDAQ for a period of five (5) consecutive trading days, other than as a result of the suspension of trading in securities on such market in general; or
(c) Any money judgment (including any arbitration award, but only if reduced to a judgment, but excluding any arbitration award rewarded in respect of such proceedings commenced pursuant to Paragraph 8(f)), writ or warrant of attachment, or similar process in excess of Five Hundred Thousand Dollars ($500,000) in the aggregate shall be entered or filed against the Company, its subsidiaries or any of their properties or other assets and which shall remain unpaid, unvacated, unbonded or unstayed for a period of sixty (60) days or in any event later than ten (10) days prior to the date of any proposed sale thereunder; or
(d) The Company refuses at any time to honor any Conversion Notice issued in accordance with (and subject to) the terms of Paragraph 6 hereof and deliver shares pursuant thereto; or
(e) The Company shall default in the payment of (i) interest on this Debenture, and such default shall continue for five (5) business days after the due date thereof, or (ii) the Outstanding Principal Amount of this Debenture; or
(f) Any of the representations or warranties made by the Company herein, in the Subscription Agreement, or in any certificate or financial or other statements heretofore or hereafter furnished by or on behalf of the Company in connection with the execution and delivery of this Debenture or the RockGen Lessee Subscription Agreement shall fail to make be false or misleading in any other amount payable under any Operative Document after material respect at the same shall become due thereunder time made and such failure condition (to the extent capable of being cured) shall have continued from continue uncured for a period of ten (10) Business Days business days after receipt by notice from the RockGen Lessee and the Guarantor of written notice Holder of such failure by the RockGen Lessee and/or the Guarantor, as applicable;condition; or
(cg) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor Company shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of in the RockGen Lessee under any of the Operative DocumentsSubscription Agreement, 30 days after receipt by the Guarantor of written notice thereof from the Owner ParticipantWarrants or this Debenture, including, without limitation, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which failure to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy honor any Conversion Notice and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instrumentsdeliver shares pursuant thereto, and such unpaid portion exceeds $50,000,000 failure shall continue uncured for a period of ten (or its foreign currency equivalent10) individually or in business days after notice from the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware Holder of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditorsfailure; or
(vh) admits The Company shall (1) become insolvent; (2) admit in writing its inability to generally pay its debts generally as such debts become due; or takes any comparable action under any foreign laws relating to insolvencythey mature;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 1 contract
Sources: Convertible Debenture (American Biogenetic Sciences Inc)
Defaults. The occurrence of any of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):Default hereunder:
(a) Any representation or warranty made by the Guarantor Servicer, the Indenture Trustee, RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co. or the RockGen Lessee Depositor hereunder or under the Facility Lease Transaction Documents, or in any certificate furnished hereunder or under the Transaction Documents, shall prove to be untrue or incomplete in any material respect;
(i) The Servicer, , RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co., First Union or the Depositor shall fail to make pay when due any payment with respect to Periodic Rent amount payable by the Servicer, RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co., First Union or the Termination Value Depositor hereunder or (including ii) a legislative body has enacted any law that declares or a court of competent jurisdiction shall find or rule that any Transaction Document is not valid and binding on the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after Servicer, the same shall become due thereunder; or
(b) Indenture Trustee, RBMG, the Guarantor Sub-Servicer, the Issuer, the Company, Funding Co., First Union or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicableDepositor;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 occurrence and continuance of a "Servicer Event of Default" under the Servicing Agreement (transfer of RockGen Lessee ownershipas defined therein), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.;
(d) Any failure on the Guarantor shall fail part of the Servicer, the Indenture Trustee, RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co. or the Depositor duly to observe or perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respectrespect any other of the covenants or agreements on the part of the Servicer, the Indenture Trustee, RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co. or the Depositor contained in this Insurance Agreement or in any other Transaction Document which shall continue continues unremedied for (1) a period of 30 days with respect to the Guarantor's guaranty ofthis Insurance Agreement, and agreement with respect toor, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligationTransaction Document, covenant beyond any cure period provided for therein, after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Indenture Trustee, the Servicer, RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co. or agreement hereunderthe Depositor, 30 days after receipt as applicable, by the Guarantor of written notice thereofInsurer (with a copy to the Indenture Trustee) or by the Indenture Trustee (with a copy to the Insurer);
(e) there shall have occurred either (i) A decree or order of a default by the Guarantor court or any Restricted Subsidiary under any instrument agency or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) supervisory authority having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or jurisdiction in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it premises in an involuntary case;
(iii) consents to case under any present or future federal or state bankruptcy, insolvency or similar law or the appointment of a Custodian of it conservator or for all receiver or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian liquidator or other similar official with respect to it in any insolvency, readjustment of debt, marshalling of assets and liabilities or any substantial part of its property similar proceedings, or (iii) for the winding-up or liquidation of its affairs, shall have been entered against the Guarantor Servicer, RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co., First Union or such Significant Subsidiary; the Depositor and such involuntary case decree or other proceeding order shall remain undismissed and have remained in force undischarged or unstayed for a period of 60 90 consecutive days;
(f) The Servicer, RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co., First Union or the Depositor shall consent to the appointment of a conservator or receiver or liquidator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer, RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co., First Union or the Depositor or of or relating to all or substantially all of the property of either;
(g) The Servicer, RBMG, the Sub-Servicer, the Issuer, the Company, Funding Co., First Union or the Depositor shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of or otherwise voluntarily commence a case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because The occurrence and continuance of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease "Event of Default" under the Indenture (as defined therein); provided, however, notwithstanding the foregoing, no Lease ;
(i) The occurrence and continuance of a "Event of Default under Section 16(m) and no remedies Default" under the Facility Lease may be exercised until a Calpine Guaranty Event Sub-Servicing Agreement (as defined therein);
(j) the failure of Default has occurred RBMG, the Company, Funding Co. or the Depositor to comply with, or maintain the accuracy of, the Opinion Facts and is continuingAssumptions.
Appears in 1 contract
Sources: Insurance Agreement (Residential Asset Funding Corp)
Defaults. The existence or occurrence of any one or more of the following events shall constitute an "“Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):”:
(a) the Guarantor or the RockGen Lessee under the Facility Lease Borrower shall fail to make payment of any payment with respect to Periodic Rent of the principal of or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) interest on this Note when due and payable under such Facility Lease or this Guaranty within failure continues for a period of not less than five (5) days after the same shall become due thereunderBusiness Days without being cured; or
(b) the Guarantor Borrower shall fail to observe or perform any covenants, obligations or agreements contained in or Sections 4 or 5 of this Note and such failure continues for a period of not less than five (5) Business Days without being cured; or
(c) the RockGen Lessee Borrower shall fail to make payment of any amounts due under the Convertible Notes or any other obligation for payment of monies owing in an amount payable under any Operative Document after the same shall become due thereunder of not less than $400,000 and such failure shall have continued from continues for a period of ten not less than five (105) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.without being cured; or
(d) the Guarantor any representation or warranty herein shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) untrue in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable failure continues for a period of not less than five (5) Business Days without being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;cured; or
(e) there the Borrower shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes execute a general assignment for the benefit of its creditors; or
, (vii) admits in writing its inability to generally pay its debts as such debts become due; the subject, voluntarily or takes involuntarily, of any comparable action under any foreign laws relating to bankruptcy, insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, moratorium, debt relief, reorganization or other relief with respect similar proceeding; provided, however, it shall not be an Event of Default if the Borrower becomes the subject of an involuntary bankruptcy, insolvency, moratorium, debt relief, reorganization or similar proceeding so long as it promptly objects to it such proceeding and seeks a dismissal or stay thereof and the proceeding is dismissed or stayed within sixty (60) days following its debts filing, (iii) apply for or consent to or acquiesce in the appointment of a custodian, receiver, trustee, or liquidator of itself or of all or a substantial part of its assets, (iv) file a voluntary petition seeking protection under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency insolvency, moratorium, debt relief, reorganization or other similar law now or hereafter in effectexisting, (v) file an answer admitting the material allegations of, or consenting to, or default in filing an answer to, a petition filed against it in any bankruptcy, insolvency, moratorium, debt relief, reorganization or similar proceedings, (iivi) institute or voluntarily be or become a party to any other judicial proceedings intended to effect a discharge of the appointment debts of the Borrower or any Subsidiary, as the case may be, in whole or in part or (vii) take any corporate action for the purpose of authorizing any of the foregoing; or
(f) an order, judgment, or decree shall be entered by any court of competent jurisdiction appointing a trusteecustodian, receiver, liquidatortrustee, custodian or other similar official with respect to it liquidator of the Borrower of all or any substantial part of the Borrower’s assets, unless such order, judgment or decree is dismissed or stayed within sixty (60) days after its property or entry; or
(iiig) the winding-up liquidation, dissolution or liquidation termination of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 daysBorrower;
(h) the occurrence, directly or indirectly, by operation of law or otherwise, of any representation Change of Control of the Borrower; or
(i) this Note shall for any reason cease to be, or warranty made shall be asserted by the Guarantor herein shall prove Borrower, or any Affiliate thereof not to have been incorrect in any material respect when made or misleading in any material respect when made because be, a legal, valid and binding obligation of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingBorrower.
Appears in 1 contract
Sources: Facility Agreement (authID Inc.)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):a Default under this Agreement:
(a) The Borrower fails to pay the Guarantor principal amount of the Loan and interest thereon according to the terms of the Note or any other payment required by any of the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (Financing Documents, including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; orObligations;
(b) The Borrower ceases to use the Guarantor or Facility in connection with the RockGen Lessee shall fail to make any other amount payable under any Operative Document after manufacture and/or assembly of wood products, as contemplated in this Agreement, the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee Application, and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicableCommitment Letter;
(c) The Guarantor shall fail to comply with its covenants set forth Any statement made in Section 3.3 any certificate, report or opinion (transfer of RockGen Lessee ownershipincluding legal opinions), 3.6 (Guarantor merger) financial statement, or 8.4 (assignment of Guaranty) of this Guaranty.other document furnished in connection with the Loan was incorrect in any material respect when made;
(d) the Guarantor shall fail to perform or observe The Borrower breaches any covenant, obligation representation, warranty, or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) provision of this Section 7.1) in any material respectAgreement, which shall continue unremedied for breach is not cured within 30 calendar days from the date the Borrower receives (1as provided in Section 6.01 below) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement written notice of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof breach from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through TrusteeLender; provided, however, if such condition canhowever that the Borrower shall not be remedied within such 30-receive a 30 calendar day period, then the cure period within under this subsection for any breach for which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition there is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereofa specific Default set forth in this Section;
(e) there shall have occurred either The Borrower breaches (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturitycovenant, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instrumentsrepresentation, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paidwarranty, or such default is not cured other provision in any other Financing Document, which breach continues beyond any applicable grace or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectcure period, or (ii) the appointment provisions of Sections 3.02(a), (e), (h), (l), and (o) of this Agreement;
(f) Any portion of, or interest in, the Facility is sold, leased, subleased, transferred, encumbered, or otherwise conveyed, without the prior written consent of the Lender;
(g) The Borrower fails to comply with any requirement of any Governmental Authority within 30 days after written notice of the requirement is made or within any other time period set by the Governmental Authority; or if any proceeding is commenced or action taken to enforce any remedy for a violation of any requirement of a trustee, receiver, liquidator, custodian or other similar official with respect to it Governmental Authority or any substantial restrictive covenant affecting any part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 daysFacility;
(h) any representation or warranty made The Project is not completed, as determined in the sole discretion of the Lender, by the Guarantor herein shall prove to have been incorrect in Completion Date;
(i) A default or event of default occurs under the terms of any material respect when made bond, debenture, note, or misleading in any material respect when made because other evidence of indebtedness of the omission to state Borrower and remains uncured beyond any applicable grace or cure period;
(j) Final judgment for the payment of money in excess of $1,000,000 is rendered against the Borrower and is not discharged or a material fact and such incorrect stay of execution thereon or misleading representation a bond is and continues to be material and unremedied not procured within 30 days from the date of entry thereof, or if thereafter the judgment remains unsatisfied for a period of 30 days after receipt the termination of any such stay of execution thereon or bond;
(k) Any court of competent jurisdiction makes a final order (i) adjudicating the Borrower a bankrupt, (ii) appointing a trustee or receiver of a substantial part of the property of the Borrower, (iii) approving a petition for, or affecting an arrangement in, bankruptcy, a reorganization pursuant to federal bankruptcy law, or any other judicial modification or alterations of the rights of the Lender or of other creditors of the Borrower, (iv) assuming custody or sequestering any substantial part of the property of the Borrower, or (v) attaching or garnishing any substantial part of the property of the Borrower; or if the Borrower (A) files such petition, or (B) takes or consents to any other actions seeking any such judicial order, or (C) makes an assignment for the benefit of creditors, or (D) fails to pay debts generally as they become due, or (E) makes an admission in writing of inability to pay debts generally as they become due;
(l) Without the prior written consent of the Lender, the Borrower (i) sells or transfers all or substantially all of its business assets, (ii) begins any proceeding to dissolve or liquidate, (iii) changes the form of business entity through which it presently conducts its business, or (iv) merges or consolidates;
(m) Without the prior written consent of the Lender, the Borrower is dissolved by operation of law or in any other manner;
(n) The Lender makes a good faith determination that the Guarantor Borrower’s tangible net worth has fallen below $65,000,000 as of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up any quarterly financial statement;
(o) The Borrower relocates to an additional 60 daysarea which is not a Priority Funding Area, so long as that term is defined in Title 5-7B of the Guarantor diligently pursues such remedy State Finance and such condition is reasonably capable Procurement Article of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(athe Annotated Code of Maryland;
(p) and A default or event of default occurs under the terms of (bi) above shall not affect in any way of the right hereunder other Financing Documents, (ii) any of any Beneficiary entitled to a payment of any amount payable to itthe County ReGrant Documents, or performance of any obligation, by (iii) the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure MITP Documents; or
(q) As of the RockGen Lessee to pay or perform Completion Date, the same when it has become due (and, for principal amount of the avoidance Loan exceeds 70% of doubt, without regard to the existence costs of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingProject.
Appears in 1 contract
Defaults. The (a) Each of the following events shall constitute an "“Event of Default" ” hereunder (whether any whatever the reason for such event of default and whether it shall be voluntary or involuntary involuntary, or come about or be effected by operation of law law, or be pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entityadministrative or governmental body):
(a1) the Guarantor or the RockGen if Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) pay when due any sum under this Agreement and payable under such Facility Lease failure shall continue for a period of three business days after oral, facsimile, electronic mail or written notice has been given by Lessor to Lessee; (2) if Lessee shall fail to perform any covenant or agreement contained herein, and such failure shall continue for a period of fifteen (15) calendar days after notice thereof shall have been given in writing; (3) if any representation or warranty made by Lessee in this Guaranty within five Agreement or any agreement, document or certificate delivered by the Lessee in connection herewith is or shall become incorrect in any material respect; (4) if Lessee shall operate the Aircraft in violation of any applicable law, regulation, rule or order of any governmental authority having jurisdiction thereof or shall operate the Aircraft when the insurance required hereunder shall not be in effect; (5) if any proceedings shall be commenced under any bankruptcy, insolvency, reorganization, readjustment of debt, receivership or liquidation law or statute of any jurisdiction; or (6) if any such proceedings shall be instituted against either Party and shall not be withdrawn or terminated within thirty (30) calendar days after the same shall become due thereunder; ortheir commencement. BLACKSTONE DRY LEASE AGREEMENT (GLOBAL 6000) - PAGE 6 OF 9
(b) Upon the Guarantor occurrence of any Event of Default Lessor may, at its option, exercise any or all remedies available at law or in equity, including, without limitation, any or all of the RockGen following remedies, as Lessor in its sole discretion shall elect: (1) by notice in writing to terminate this Agreement immediately, whereupon all rights of the Lessee to the use or possession of the Aircraft or any part thereof shall absolutely cease and terminate but Lessee shall fail to make any other amount payable under any Operative Document after remain liable as hereinafter provided; and thereupon Lessee, if so requested by Lessor, shall at its expense promptly return the Aircraft and Aircraft Documentation as required by this Agreement or Lessor, at its option, may enter upon the premises where the Aircraft or Aircraft Documentation are located and take immediate possession of and remove the same shall become due thereunder by summary proceedings or otherwise. Lessee specifically authorizes ▇▇▇▇▇▇’s entry upon any premises where the Aircraft or Aircraft Documentation may be located for the purpose of, and such failure shall waives any cause of action it may have continued from arising from, a period peaceful retaking of ten the Aircraft or Aircraft Documentation; or (102) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement cause to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any hereunder. ▇▇▇▇▇▇ agrees to pay all costs and expenses incurred by ▇▇▇▇▇▇ for such performance and acknowledges that such performance by ▇▇▇▇▇▇ shall not be deemed to cure said Event of Default.
(c) Lessee shall be liable for all costs, charges and expenses, including reasonable legal fees and disbursements, incurred by Lessor by reason of the Operative Documents, 30 days after receipt by the Guarantor occurrence of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee any Event of Default or the Pass Through Trustee; providedexercise of ▇▇▇▇▇▇’s remedies with respect thereto. No remedy referred to herein is intended to be exclusive, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition but each shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy cumulative and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect in addition to any other obligation, covenant remedy referred to above or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually otherwise available to Lessor at law or in equity. Lessor shall not be deemed to have waived any default, Event of Default or right hereunder unless the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default same is acknowledged in writing by the Guarantor or any Restricted Subsidiary in the payment when due duly authorized representative of Lessor. No waiver by Lessor of any portion default or Event of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding Default hereunder shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder be, or be construed to be, a waiver of any Beneficiary entitled to a payment of any amount payable to it, future or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, subsequent default or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided. The failure or delay of Lessor in exercising any rights granted it hereunder upon any occurrence of any such right upon the continuation or recurrence of any such contingencies or similar contingencies, however, notwithstanding and any single or partial exercise of any particular right by Lessor shall not exhaust the foregoing, no Lease Event same or constitute a waiver of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingany other right provided herein.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute an "Event be considered events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected default by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):Tenant under this Lease:
(a) the Guarantor or the RockGen Lessee under the Facility Lease Tenant shall fail to make any payment with respect to Periodic of Rent or the Termination Value (including the Equity Portion of Termination Value any other payment required to be made by Tenant hereunder when due, and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within failure continues for five (5) days after the same shall become due thereunderwritten notice thereof; or
(b) the Guarantor or the RockGen Lessee Tenant shall fail in keeping, observing or performing any of the other covenants or agreements herein contained to make any other amount payable under any Operative Document after the same shall become due thereunder be kept, observed and performed by Tenant, and such failure shall have continued from a period of ten continue for thirty (1030) Business Days days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;thereof in writing to Tenant; or
(c) The Guarantor Tenant shall fail make any assignment for the benefit of creditors or shall apply for or consent to comply with the appointment of a receiver for itself or any of its covenants set forth property, or shall admit in Section 3.3 (transfer writing its inability to pay its debts as they come due, or shall file for bankruptcy or institute any other proceedings for relief under any bankruptcy or insolvency laws or any laws relating to the relief of RockGen Lessee ownership)debtors, 3.6 (Guarantor merger) readjustment or 8.4 (assignment of Guaranty) of this Guaranty.indebtedness, reorganization, arrangements, composition or extensions, or
(d) Any third party shall institute bankruptcy or insolvency proceedings against Tenant, and such proceedings shall not have been dismissed within thirty (30) days from the Guarantor date of entry or granting thereof; or Tenant shall fail to perform be adjudged an involuntary bankrupt, or observe a decree or order for reorganization under the Federal bankruptcy laws or under the laws of any covenantstate, obligation shall be entered against Tenant and any such decree or agreement judgment or order shall not have been vacated or set aside within thirty (30) days from the date of the entry or granting thereof, or Tenant shall admit the material allegations contained in any petition in bankruptcy or any petition pursuant to, or purporting to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect pursuant to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereofFederal bankruptcy laws;
(e) there In the event Tenant fails to timely submit to Landlord any statement of Gross Sales in accordance with the terms and conditions contained herein or fails to pay Percentage Rent and either such failure continues for fifteen (15) days after written notice, or if Tenant falsifies, hides or otherwise fails to report Gross Sales, or adopts or changes business operations for the primary purpose of avoiding the payment of Percentage Rent, or if any Governmental Action is brought against Landlord or its principals as a result of the payment or receipt of Percentage Rent, and is not dismissed without prejudice within 30 days after demand by Landlord, then Tenant shall have occurred either (i) be in default. Upon the occurrence of any one or more of such events, Tenant shall be in default hereunder. Upon a default by Tenant, Landlord may apply and retain all sums deposited with Landlord hereunder, and Landlord may, at its election, terminate this Lease or terminate Tenant's right to possession only, without terminating the Guarantor Lease. Upon termination of the Lease, or upon any termination of the Tenant's right to possession without termination of the Lease, the Tenant shall surrender possession and vacate the Premises immediately, and deliver possession thereof to the Landlord, and Tenant hereby grants to the Landlord the full and free right, without demand or notice of any kind to Tenant, to enter into and upon the Premises, with or without process of law, and to repossess the Premises as the Landlord's former estate and to expel or remove the Tenant and any others who may be occupying the Premises, without being deemed in any manner guilty of trespass, eviction, or forcible entry or detainer, without incurring any liability for any damage resulting therefrom and without relinquishing the Landlord's rights to Rent or any Restricted Subsidiary under any instrument other right given the Landlord hereunder or instruments under which there is or may be secured or evidenced any Indebtedness by operation of law. Tenant shall pay on demand all costs and expenses, including attorneys' fees and costs, incurred by Landlord in recovering sums due hereunder, recovering possession of the Guarantor Premises, or otherwise enforcing this Lease or pursuing Landlord's rights and remedies against Tenant or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturityassignee, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case sublessee or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingtransferee.
Appears in 1 contract
Sources: Industrial Building Lease
Defaults. The following are events shall constitute of default under this Note (each, an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity"):
(ai) the Guarantor or the RockGen Lessee under the Facility Lease Borrower shall fail to make pay any payment with respect to Periodic Rent principal, interest, fees, charges, or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) any other amount when due and payable under hereunder; or (ii) Borrower shall fail to deliver any Conversion Shares pursuant to Section 2 above in accordance with the terms hereof; or (iii) Borrower shall fail to deliver any Conversion Shares pursuant to Section 3 above in accordance with the terms hereof, or (iv) a receiver, trustee or other similar official shall be appointed over Borrower or a material part of its assets and such Facility Lease or this Guaranty within five appointment shall remain uncontested for twenty (520) days after the same or shall not be dismissed or discharged within sixty (60) days; (v) Borrower shall become due thereunderinsolvent or generally fails to pay, or admits in writing its inability to pay, its debts as they become due, subject to applicable grace periods, if any; or
(bvi) the Guarantor or the RockGen Lessee Borrower shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(vvii) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action Borrower shall file a petition for relief under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now (domestic or hereafter in effect, foreign); or (iiviii) the appointment of a trustee, receiver, liquidator, custodian an involuntary proceeding shall be commenced or other similar official with respect to it or any substantial part of its property filed against Borrower; or (iiiix) the winding-up Borrower shall default or liquidation of the Guarantor otherwise fail to observe or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect perform in any material respect when any covenant, obligation, condition or agreement of Borrower contained herein or in any other Transaction Document, other than those specifically set forth in this Section 4.1; or
(x) Borrower shall become delinquent in its filing requirements as a fully-reporting issuer registered with the SEC or shall fail to timely file all required quarterly and annual reports and any other filings that are necessary to enable Lender to sell Conversion Shares pursuant to Rule 144; or (xi) any representation, warranty or other statement made or furnished by or on behalf of Borrower to Lender herein, in any Transaction Document, or otherwise in connection with the issuance of this Note shall be false, incorrect, incomplete or misleading in any material respect when made because or furnished; or (xii) the occurrence of a Fundamental Transaction without Lender's prior written consent; or (xiii) Borrower shall fail to maintain the omission Share Reserve as required under the Purchase Agreement; or (xiv) Borrower effectuates a reverse split of its Common Stock without twenty (20) Trading Days prior written notice to state a material fact Lender, or (xv) any money judgment, writ or similar process shall be entered or filed against Borrower or any subsidiary of Borrower or any of its property or other assets for more than $100,000, and such incorrect shall remain unvacated, unbonded or misleading representation is and continues to be material and unremedied unstayed for a period of 30 twenty (20) calendar days after receipt unless otherwise consented to by the Guarantor of written notice thereofLender; provided, however, that if such condition cannot be remedied or (xvi) Borrower shall fail to deliver to Lender original signature pages to all Transaction Documents within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(afive (5) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure Trading Days of the RockGen Lessee to pay Purchase Price Date; or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(mxvii) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and Borrower is continuingnot DTC Eligible.
Appears in 1 contract
Sources: Unsecured Convertible Promissory Note (Vape Holdings, Inc.)
Defaults. The In the event of any one or more of the following events shall constitute an ("Event Events of Default" hereunder ") shall have occurred and shall not have been remedied as hereinafter provided: (whether 1) the occurrence of any such event set forth in Article XIX hereof, without the curing of same as therein provided; (2) Tenant's failure to pay any installment of basic rent, additional rent or any other monetary payments when the same shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after and the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and continuance of such failure shall have continued from for a period of ten (10) Business Days days after receipt by Tenant of notice in writing from Landlord specifying in detail the RockGen Lessee nature of such failure, provided, however that Tenant shall pay interest at the rate of 18% per annum during any period in which any payment is delinquent; (3) a material default by Tenant, and the Guarantor expiration of written any grace, notice of such failure by the RockGen Lessee and/or the Guarantoror cure period required thereby, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documentsother agreements then existing between Landlord and Tenant, 30 including without limitation, the and (4) Tenant's failure to perform any of the other covenants, conditions and agreements herein contained on Tenant's part to be kept or performed and the continuance of such failure for a period of sixty (60) days after receipt by Tenant of notice in writing from Landlord specifying in detail the Guarantor nature of written such failure, and provided Tenant shall not cure said failure as provided in Section 18.02 hereof; then, Landlord may, at its option, give to Tenant a notice thereof of election to end the term of this Lease upon a date specified in such notice, which date shall be not less than thirty (30) business days (Saturdays, Sundays and legal holidays excluded) after the date of receipt by Tenant of such notice from Landlord, and upon the Owner Participantdate specified in said notice, the Owner Lessorterm and estate hereby vested in Tenant shall cease and any and all other right, title and interest of Tenant hereunder shall likewise cease without further notice or lapse of time, as fully and with like effect as if the Indenture Trustee or entire term of this Lease had elapsed, but Tenant shall continue to be liable to Landlord as hereinafter provided. Simultaneously with the Pass Through Trustee; providedsending of the notice to Tenant, howeverhereinabove provided for, if Landlord shall send a copy of such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect notice to any other obligation, covenant or agreement hereunder, 30 days after receipt leasehold Mortgagee(s) as to which Landlord has received written notice. The curing of any default(s) in the manner provided hereinabove by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor aforesaid parties or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturitycombinations thereof, unless such declaration has been rescinded within 30 days or (ii) shall constitute a default by the Guarantor or any Restricted Subsidiary in the payment when due curing of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalentdefault(s) individually or in the aggregate and is not paid, or such default is not hereunder with like effect as if Tenant had cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuinghereunder.
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute an "Event be considered events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected default by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):Tenant under this Lease:
(a) the Guarantor or the RockGen Lessee under the Facility Lease Tenant shall fail to make any payment with respect to Periodic of Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) any other payment required to be made by Tenant hereunder when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunderdue; or
(b) the Guarantor or the RockGen Lessee Tenant shall fail in keeping, observing or performing any of the other covenants or agreements herein contained to make any other amount payable under any Operative Document after the same shall become due thereunder be kept, observed and performed by Tenant, and such failure shall have continued from a period of ten continue for twenty (1020) Business Days days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;thereof in writing to Tenant; or
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, howeverTenant, if such condition cannot be remedied within such 30-day periodany, then shall make any assignment for the period within which to remedy such condition benefit of creditors or shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant apply for or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents consent to the appointment of a Custodian receiver for themselves or any of it their property, shall file for or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) be adjudged an involuntary case bankrupt, or other proceeding shall be commenced against a decree or order for reorganization under the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law Federal bankruptcy laws as now or hereafter in effectamended, or under the laws of any state, shall be entered against Tenant, and any such decree or judgment or order shall not have been vacated or set aside within sixty (ii60) days from the appointment date of the entry or granting thereof. Upon the occurrence of any one or more of such events, Tenant shall be in default hereunder. Upon a trusteedefault by Tenant, receiverLandlord may apply and retain all sums deposited with Landlord hereunder, liquidatorand Landlord may, custodian at its election, terminate this Lease or terminate Tenant’s right to possession only, without terminating the Lease. Upon termination of the Lease, or upon any termination of the Tenant’s right to possession without termination of the Lease, the Tenant shall surrender possession and vacate the Premises immediately, and deliver possession thereof to the Landlord, and Tenant hereby grants to the Landlord the full and free right, without demand or notice of any kind to Tenant, to enter into and upon the Premises, with or without process of law, and to repossess the Premises as the Landlord’s former estate and to expel or remove the Tenant and any others who may be occupying the Premises, without being deemed in any manner guilty of trespass, eviction, or forcible entry or detainer, without incurring any liability for any damage resulting therefrom and without relinquishing the Landlord’s rights to Rent or any other right given the Landlord hereunder or by operation of law. Tenant shall pay on demand all costs and expenses, including attorneys’ fees and costs, incurred by Landlord in recovering sums due hereunder, recovering possession of the Premises, or otherwise enforcing this Lease or pursuing Landlord’s rights and remedies against Tenant or any assignee, sublessee or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingtransferee.
Appears in 1 contract
Sources: Land Lease
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) The occurrence of any one or more of the Guarantor following events shall, at the sole option of the Bank, constitute an Event of Default hereunder:
(i) the Borrower or the RockGen Lessee under the Facility Lease Surety shall fail to make any monthly payment of principal and/or interest due to the Bank under the Note or under any of the other Loan Documents or under any present or future swap agreement entered into in connection with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty Note, in any case within five (5) days after any such principal, interest or other amount becomes due in accordance with the same shall become due thereunderterms hereof or thereof; or
(bii) the Guarantor Borrower or the RockGen Lessee Surety shall fail to make observe and perform any of the covenants or agreements on its part to be observed and performed under this Agreement or under any other amount payable under Loan Documents or any Operative Document after present or future swap agreement (other than as set forth in subsection (i) hereof) entered into in connection with the same shall become due thereunder Note, and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt following delivery of notice thereof by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through TrusteeBank; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;or
(iii) consents to any representation or warranty of the appointment of a Custodian of it Borrower or for all the Surety under this Agreement or substantially all of its property;any other Loan Documents shall have been untrue in any material respect when made; or
(iv) makes work on the construction of the Improvements shall be discontinued for a general assignment period of more than 30 days for any reason whatsoever other than as an act of God, strikes, unavailability of materials or other causes outside the benefit reasonable control of its creditorsBorrower and the General Contractor or as provided in subsection (vii) hereof; or
(v) the Improvements shall be materially injured or destroyed by fire or other casualty for which the cost of restoration is not fully insured; or
(vi) the Borrower shall fail to comply with any requirements of governmental or quasi governmental authorities having jurisdiction over the Real Property or Improvements within any applicable grace or cure period(s), after notice of such requirement has been given to the Borrower; and such failure could reasonably be expected to have a material adverse impact on the value of the Real Property or the security provided thereby to the Bank; or
(vii) any permit or approval necessary for the renovations to or the occupancy of the Improvements shall be revoked and not reinstated or reissued within 90 days; and
(viii) the Borrower or the Surety shall fail to perform any material term, condition or covenant of any note, loan agreement, guaranty, mortgage or other instrument or agreement in connection with the borrowing of money or the obtaining of advances or credit to which the Borrower or the Surety is a party or by which it is bound, or by which any of its properties or assets may be affected (a "Debt Instrument"), so that, as a result of any such failure to perform, the indebtedness in excess of $100,000 included therein or secured or covered thereby is declared due and payable prior to the date on which such indebtedness would otherwise become due and payable; or (ii) any indebtedness in excess of $100,000 included in any Debt Instrument or secured or covered thereby is not paid when due beyond any applicable grace period; or
(ix) the Borrower or the Surety shall make an assignment for the benefit of creditors generally, file a petition under the Federal Bankruptcy Code or any similar law, state or federal, be adjudicated insolvent or bankrupt, petition or apply to any tribunal for the appointment of a receiver, or trustee or a custodian for it or a substantial part of its assets, or shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or there shall have been filed any such petition or application against it, which remains undismissed, undischarged and unstayed for a period of ninety (90) days or more; or the Borrower or the Surety shall consent in writing to the approval of or acquiescence in any such petition, application or proceeding or the appointment of a receiver or trustee or a custodian for it or any substantial part of any of its properties, or shall suffer any such receivership, trusteeship or custodianship to continued undismissed, undischarged or unstayed for ninety (90) days or more; or
(xi) the Borrower or the Surety shall fail to pay, or admits in writing its inability to generally pay pay, its debts generally as such debts they become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 1 contract
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event Buyer shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or deemed in compliance with any judgment, decree or order default hereunder upon the occurrence of any court or any order, rule or regulation of any Governmental Entitythe following (a “Default”):
(a) the Guarantor The failure of Buyer to pay, when due (whether by scheduled maturity, acceleration or the RockGen Lessee otherwise), any payment of principal or interest required to be made by this Note, unless Buyer is at such time prohibited from making such payment under the Facility Lease shall fail to make any payment with respect to Periodic Rent or terms of the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; orSubordination Agreement;
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure Buyer shall have continued from entered against it by a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) court having jurisdiction thereof a decree or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in respect to Buyer in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action case under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian assignee, custodian, trustee, sequestrator or other similar official with respect to it shall be appointed for Buyer or for any substantial part of its property Buyer’s property, or (iii) the winding-winding up or liquidation of Buyer’s affairs shall have been ordered;
(c) Buyer shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect or consent to the Guarantor entry of an order for such relief in an involuntary case under any such law, or such Significant Subsidiary; and any such involuntary case shall commence, and not be dismissed within sixty (60) days, or Buyer shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator or other proceeding shall remain undismissed and unstayed similar official for a period Buyer or for any substantial part of 60 daysBuyer’s property, or make any general assignment for the benefit of creditors;
(hd) any representation or warranty made by Buyer shall default in the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, observance or performance of any obligationother agreement or condition relating to such indebtedness, by the RockGen Lessee under beyond any Operative Document applicable grace period, provided that such default or other event or condition is to demand prompt payment thereofcause such indebtedness to become immediately due; or
(e) A dissolution or liquidation of Buyer shall have been approved, declared or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingshall have occurred.
Appears in 1 contract
Sources: Note (Patrick Industries Inc)
Defaults. The following events parties hereto agree that this Agreement is primarily one among Borrower, Owner and Lender and if at any time before the entire Loan has been advanced:
a. the interest of the Borrower in the Collateral shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary pass from Borrower voluntarily or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunderinvoluntarily; or
(b) b. if any court action affecting any part of the Guarantor Loan proceeds remaining to be advanced is pending: or
c. if the Improvements shall be substantially damaged in any manner; or
d. if the Borrower or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure Owner shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantorviolated or failed to perform, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participantcovenants or conditions contained in this Agreement, the Owner LessorNote, the Indenture Trustee Security Agreement or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant instrument or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor securing or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents relating to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; Loan: or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) e. if any representation or warranty made by the Guarantor Borrower or the Owner herein or in any certificate, statement or survey furnished by or on behalf of Borrower or Owner, shall prove to have been incorrect false in any material respect when made or misleading in any material respect when made because furnished; or
f. if the Lender shall not have a valid, perfected lien of record on the Collateral for the equal and ratable security of the omission full amount of all advances outstanding under this Agreement; or
g. if the Lender shall determine in good faith that the Improvements are not being properly constructed in accordance with the Contract, the Plans, and the requirements of any governmental body having jurisdiction; or
h. if Borrower and Owner at any time prior to state a material fact and such incorrect the completion of the Improvements both abandon the work or misleading representation there is and continues to be material and unremedied any substantial suspension of work for a period in excess of 30 twenty (20) days after receipt irrespective of the cause thereof; or
i. if Borrower or Owner make any changes in the Plans or other contract documents, or enter into any additional contract for the construction of the Improvements without first having obtained the written consent of Lender in contravention of ss.3(r); or
j. if the Collateral or any part thereof are condemned or taken by exercise of the right of eminent domain or are purchased in lieu of the exercise of such right; or
k. there occurs the dissolution, termination of existence, insolvency, appointment of a receiver of any part of the property of, assignment for the benefit of creditors by or the commencement of any proceedings under any bankruptcy or insolvency law or any other law relating to the relief of debtors by or against the Borrower or Owner, THEN, in any such case, so long as such event or condition continues uncured and not expressly waived or consented to in writing by the Guarantor Lender, the Lender shall not be required to advance any part of written the remainder of the Loan and it may elect to terminate this Agreement, and may at any time thereafter declare the unpaid principal of and all accrued interest on the Note to be immediately due and payable without notice or demand, and may take such other action as the law and/or the Loan Documents allow: it being expressly agreed that full, material performance or observance of said provisions shall be conditions precedent to the Lender's undertaking to advance the remainder of the Loan or any part thereof; no creditor of Borrower, Owner or any other person, entity or court shall have any claim upon the unadvanced remainder of the Loan, and Lender shall in no case be a trustee or fiduciary for anyone with respect thereto; provided, however, that if such condition cannot conditions precedent or any of them may be remedied within such 30-day periodwaived at any time by the Lender by an express written waiver, then the period within which to remedy such condition but no waiver at any time of any of said conditions shall be extended up construed as a right to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure subsequent waiver of the RockGen Lessee to pay same provision or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingcondition.
Appears in 1 contract
Sources: Construction Loan Agreement (Northeast Optic Network Inc)
Defaults. The Upon the happening of any of the following events shall constitute (individually an "Event of Default," hereunder collectively "Events of Default"): (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(ai) if the Guarantor or the RockGen Lessee under the Facility Lease Borrowers shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due on any Obligation under this Agreement or any other Loan Document and payable under such Facility Lease or this Guaranty within failure shall continue for a period of five (5) days after Banking Days; or (ii) if the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee Borrowers shall fail to make maintain the insurance required by Section 7.6 or Section 7.16 of this Agreement; or (iii) if any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor Borrower shall fail to comply with its covenants set forth any term, condition or covenant contained in this Agreement, other than the failure to maintain insurance in compliance with Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) 7.6 of this Guaranty.
Agreement, contained in this Agreement and such failure continues for a period in excess of fifteen (d15) the Guarantor days after notice thereof is given by Lender to such Borrower; or (iv) if any Borrower shall fail to perform comply with any term, condition or observe covenant contained in any covenantLoan Document or other agreement between Lender and any Borrower and such failure continues for any applicable grace and/or notice period; or (v) if Borrowers, obligation or agreement on a combined basis, shall cease to be performed or observed by it under any Calpine Document (other than any covenantSolvent, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to make an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing , call a meeting of its inability creditors to generally pay its debts as such debts become due; obtain any general financial accommodation, suspend business or takes if any comparable action case under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding provision of the Bankruptcy Code, including provisions for reorganizations, shall be commenced by or against the Guarantor any Borrower (and if commenced against any Borrower, such case shall not have been discharged or dismissed within forty-five (45) days of its commencement) or if a receiver, trustee or equivalent officer shall be appointed for all or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or properties of any bankruptcy, insolvency or other similar law now or hereafter in effect, Borrower; or (iivi) the appointment of a trusteeif any statement, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty contained in any Loan Document or made by the Guarantor herein any Borrower in connection with this Agreement or any Loan shall prove to have been incorrect in any material respect when made be false or misleading in any material respect when made because made; or (vii) if any federal or state tax Lien in excess of the omission to state a material fact $5,000 is filed of record against any Borrower and is not bonded or discharged within sixty (60) days of filing, unless such incorrect or misleading representation Lien is and continues to be material and unremedied for a period of 30 days after receipt being contested in good faith and, if necessary, by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor appropriate proceedings diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to itconducted, or performance of any obligationappropriate reserves therefore have been established and which, by individually or in the RockGen Lessee under any Operative Document to demand prompt payment thereofaggregate, are not material; or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.18
Appears in 1 contract
Sources: Loan Agreement
Defaults. The occurrence of any one or more of the following events shall constitute an "“Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease ”: The Borrower shall fail to make pay (i) any interest due on the Note, or any other amount payable hereunder (other than a principal payment with on the Note) within five days after the same becomes due; or (ii) any principal amount due on the Note when due; The Borrower shall default in the performance or observance of any agreement, covenant, condition, provision or term contained in Article III of this Agreement; The Borrower shall default in the performance or observance of any of the other agreements, covenants, conditions, provisions or terms in this Agreement continuing for a period of thirty days after written notice thereof is given to the Borrower by the Foundation; Any representation or warranty made by the Borrower herein or any certificate delivered pursuant hereto, or any financial statement delivered to the Foundation hereunder, shall prove to have been false in any material respect as of the time when made or given; The Borrower shall fail to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value pay as and Debt Portion of Termination Value) when due and payable (whether at maturity, by acceleration or otherwise) all or any part of the principal of or interest on any indebtedness of or assumed by it, or of the rentals due under such Facility Lease any lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor sublease, or the RockGen Lessee shall fail to make of any other amount payable obligation for the payment of money, and such default shall not be cured within the period or periods of grace, if any, specified in the instruments governing such obligations; or default shall occur under any Operative Document after the same shall become due thereunder evidence of, or any indenture, lease, sublease, agreement or other instrument governing such obligations, and such failure default shall have continued from continue for a period of ten (10) Business Days after receipt by time sufficient to permit the RockGen Lessee and acceleration of the Guarantor maturity of written notice any such indebtedness or other obligation or the termination of such failure by lease or sublease; A final judgment which, together with other outstanding final judgments against the RockGen Lessee and/or Borrower exceeds an aggregate of $50,000 shall be entered against the GuarantorBorrower and shall remain outstanding and unsatisfied, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership)unbonded, 3.6 (Guarantor merger) unstayed or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 uninsured after 60 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee date of entry thereof; or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within any judgment which to remedy such condition exceeds $25,000 shall be extended up to an additional 180 days, so long as entered against the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either Borrower; The Borrower shall: (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days become insolvent; or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paidbe unable, or such default is not cured admit in writing its inability to pay its debts as they mature; or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes make a general assignment for the benefit of creditors or to an agent authorized to liquidate any substantial amount of its creditorsproperty; or
or (iv) become the subject of an “order for relief” within the meaning of the United States Bankruptcy Code; or (v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) subject of a creditor’s petition for liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency effect a plan or other similar law now or hereafter in effect, arrangement with creditors; or (iivi) apply to a court for the appointment of a trustee, receiver, liquidator, custodian or other similar official receiver for any of its assets; or (vii) have a custodian or receiver appointed for any of its assets (with respect or without its consent); or (viii) have any of its assets garnished, seized or forfeited, or threatened with garnishment, seizure or forfeiture; or (ix) otherwise become the subject of any insolvency proceedings or propose or enter into any formal or informal composition or arrangement with its creditors. This Agreement or the Note shall, at any time after their respective execution and delivery, and for any reason, cease to it be in full force and effect or be declared null and void, or be revoked or terminated, or the validity or enforceability thereof or hereof shall be contested by the Borrower or any substantial part of its property or (iii) the winding-up or liquidation shareholder of the Guarantor Borrower, or such Significant Subsidiarythe Borrower shall deny that it has any or further liability or obligation thereunder or hereunder, as the case may be; and such involuntary case or other proceeding The Internal Revenue Service shall remain undismissed and unstayed for revoke the Borrower’s status as a period of 60 days;
(htax-exempt organization under Section 501(c)(3) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingInternal Revenue Code.
Appears in 1 contract
Sources: Term Loan Agreement
Defaults. The following events Licensee's default : If Licensee shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or default in compliance with any judgment, decree or order the payment of any court sums payable in accordance with the terms of this Agreement, or any orderfails to respect a credit or copyright obligation, rule or regulation and such default shall continue for a period of any Governmental Entity):
fifteen (a15) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) working days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from Licensee's receipt of a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice from the Licensor of such failure by the RockGen Lessee and/or the Guarantordefault, as applicable;
(c) The Guarantor or If Licensee shall fail fall to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to duly perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligationterm, covenant or agreement condition of this Agreement and of the RockGen Lessee under any Licensee has not remedied the situation for a period of the Operative Documents, 30 fifteen (15) working days after the Licensee's receipt by the Guarantor of written notice thereof from the Owner ParticipantLicensor of such failure, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition Licensee shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) adjudicated a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paidbankrupt, or such default is not cured shall file a petition in bankruptcy, or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of shall make an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of creditors, or shall take advantage of the provisions of any bankruptcy or debtor's relief act, or if any involuntary petition In bankruptcy is filed against Licensee and Is not vacated or discharged within thirty (30) days, or if a receiver is appointed for a substantial portion of its creditors; or
property and is not discharged in thirty (v30) admits days, or if Licensee voluntarily or by operation of law shall lose control of the above named television station or its interest therein, or the license to operate the same, then and upon the occurrence of any one or more of such events, any and all installments or sums payable under this Agreement remaining unpaid shall immediately become due and payable to Licensor, regardless of the due date thereof and, in writing addition, and without prejudice to any other right or remedy which may be available to Licensor at law or in equity, and without in any way releasing or discharging Licensee of or from any of its inability to generally pay its debts as such debts become due; or takes any comparable action obligations under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding this Agreement, Licensor shall be commenced against have the Guarantor or any Significant Subsidiary seeking right, either (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 terminate each and all of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectrights of Licensee under this Agreement, or (ii) to suspend the appointment further delivery of a trusteetransmission materials until such defaults shall have ceased and shall have been remedied. Licensor shall notify Licensee of either suspension or termination by registered letter, receiver, liquidator, custodian return receipt requested in which event such termination or other similar official suspension shall be automatically and immediately valid with respect to it or any substantial no further action necessary on the part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in Licensor. Licensor's default: Licensor will default if Licensor breaches any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; providedterm, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to itcovenant, or performance condition of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.this Agreement. Any default
Appears in 1 contract
Sources: Programme Licence Agreement
Defaults. The Tenant agrees that any one or more of the following events shall constitute an "Event be considered events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):default as said term is used herein:
(a) the Guarantor Tenant shall be adjudged an involuntary bankrupt, or the RockGen Lessee a decree or rider approving, as properly filed, a petition or answer filed against Tenant asking reorganization of Tenant under the Facility Lease Federal bankruptcy laws as now or hereafter amended, or under the laws of any state, shall be entered, and any such decree or judgment or order shall not have been vacated or set aside within sixty (60) days from the date of entry or granting thereof; or
(b) Tenant shall file or admit the jurisdiction of the court and the material allegations contained in any petition in bankruptcy or any petition pursuant to or purporting to be pursuant to the Federal bankruptcy laws as now or hereafter amended, or Tenant shall institute any proceeding or shall give its consent to the institution of any proceedings for any relief of Tenant under any bankruptcy or insolvency laws or any laws relating to the relief of debtors, readjustment of indebtedness, reorganization, arrangements, composition or extension; or
(c) Tenant shall make any assignment for the benefit of creditors or shall apply for or consent to the appointment of a receiver for Tenant or any of the property of Tenant; or
(d) The Leased Premises are levied upon by any revenue officer or similar officer; or
(e) A decree or order appointing a receiver of the property of Tenant shall be made and such decree or order shall not have been vacated or set aside within sixty (60) days from the date of entry or granting thereof; or
(f) Tenant shall fail to make pay any payment with respect of rent or any other payment required to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty be made by Tenant hereunder within five (5) days after from the same date such payment is due (all of which other payments shall become due thereunderbe deemed "additional rent" payable hereunder); or
(bg) the Guarantor or the RockGen Lessee Tenant shall fail to make contest the validity of any other amount payable under any Operative Document after lien or claimed lien and give security to Landlord to assure payment thereof, or, having commenced to contest the same and having given such security, shall become due thereunder fail to prosecute such contest with diligence, or shall fail to have the same released and satisfy any judgment rendered thereon, and such failure shall have continued from a period of default continues for ten (10) Business Days days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;thereof in writing to Tenant; or
(ch) The Guarantor Tenant shall fail to comply with its covenants set forth default in Section 3.3 (transfer of RockGen Lessee ownership)keeping, 3.6 (Guarantor merger) observing or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under performing any of the Operative Documentsother covenants or agreements herein contained to be kept, 30 observed and performed by Tenant, and such default shall continue for thirty (30) days after receipt by the Guarantor of written notice thereof from the Owner Participantin writing to Tenant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition default cannot be remedied cured within such thirty (30-) day period, then Tenant fails to commence and diligently pursue the cure of same within a reasonable period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:time; or
(i) commences a voluntary case;Tenant shall be late in the payment of rent or other charges required to be paid hereunder more than two (2) times in any twelve (12) calendar month period or shall repeatedly default in the keeping, observing or performing of any other covenants or agreements herein contained to be kept, observed or performed by Tenant (provided any required notice of such payment or other defaults shall have been given to Tenant, but whether or not Tenant shall have timely cured any such payment or other defaults of which notice was given).
(iij) consents Tenant shall have defaulted under its obligations to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ with respect to it or its debts under Title 11 those certain documents of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment even date herewith evidencing a line of a trustee, receiver, liquidator, custodian or other similar official with respect credit to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingTenant.
Appears in 1 contract
Defaults. The Any one or more of the following events shall constitute an "Event be considered events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):default as said term is used herein:
(a) the Guarantor Tenant shall be adjudged an involuntary bankrupt, or the RockGen Lessee a decree or order approving, as properly filed, a petition or answer filed against Tenant asking reorganization of Tenant under the Facility Lease Federal bankruptcy laws as now or hereafter amended, or under the laws of any state, shall fail to make be entered, and any payment with respect to Periodic Rent such decree or the Termination Value judgment or order shall not have been vacated or set aside within sixty (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (560) days after from the same shall become due thereunderdate of the entry or granting thereof; or
(b) Tenant shall file any petition in bankruptcy or any petition pursuant or purporting to be pursuant to the Guarantor Federal bankruptcy laws as now or hereafter amended, or Tenant shall institute any proceeding or shall give its consent to the RockGen Lessee shall fail to make institution of any other amount payable proceedings for any relief of Tenant under any Operative Document after bankruptcy or insolvency laws or any laws relating to the same shall become due thereunder and such failure shall have continued from a period relief of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantordebtors, as applicable;readjustment or indebtedness, reorganization, arrangements, composition or extension; or
(c) The Guarantor Tenant shall fail to comply with its covenants set forth in Section 3.3 (transfer make any assignment for the benefit of RockGen Lessee ownership), 3.6 (Guarantor merger) creditors or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied apply for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents consent to the appointment of a Custodian receiver for Tenant or any of it or for all or substantially all the property of its property;
(iv) makes a general assignment for the benefit of its creditorsTenant; or
(vd) admits in writing its inability to generally pay its debts as The Leased Premises are levied upon by any revenue officer or similar officer; or
(e) A decree or order appointing a receiver of the property of Tenant shall be made and such debts become duedecree or order shall not have been vacated or set aside within thirty (30) days from the date of entry or granting thereof; or
(f) Tenant shall abandon the Leased Premises or takes any comparable action under any foreign laws relating to insolvency;vacate the same during the term hereof; or
(g) an involuntary case Tenant shall default in any payment of rent or in any other proceeding payment required to be made by Tenant hereunder when due as herein provided, and any such default shall be commenced against the Guarantor or any Significant Subsidiary seeking continue for ten (i10) liquidation, reorganization or other relief with respect days after notice thereof in writing to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant SubsidiaryTenant; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;or
(h) Tenant shall fail to contest the validity of any representation lien or warranty made by claimed lien, or, having commenced to contest the Guarantor herein same, shall prove fail to prosecute such contest with diligence, or shall fail to have been incorrect the same released and satisfy any judgment rendered thereon, or shall otherwise fail to comply with Article XI, and such default continues for ten (10) days after notice thereof in writing to Tenant; or
(i) Tenant shall default in keeping, observing or performing any material respect when made or misleading in any material respect when made because of the omission other covenants or agreements herein contained to state a material fact be kept, observed and performed by Tenant, and such incorrect or misleading representation is and continues to be material and unremedied default shall continue for a period of 30 thirty (30) days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which thereof in writing to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingTenant.
Appears in 1 contract
Defaults. The If any of the following events shall constitute an ("Event Events of Default" hereunder (whether any such event ") shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):occur:
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made or deemed made by or on behalf of the Guarantor herein Company or any Borrowing Subsidiary in or in connection with any Loan Document, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Loan Document, shall prove to have been incorrect in any material respect when made or misleading deemed made;
(b) any Borrower shall fail to pay any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(c) any Borrower shall fail to pay any interest on any Loan or any Fee or any other amount (other than an amount referred to in clause (b) above) payable under any Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of three Business Days;
(d) the Company or any Subsidiary shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02, Section 5.03 (with respect to any Borrower's existence) or Section 5.08 or in Article VI;
(e) the Company or any Subsidiary shall fail to observe or perform any covenant, condition or agreement contained in any material respect when made because of the omission to state a material fact Loan Document (other than those specified in clause (b), (c) or (d) above), and such incorrect or misleading representation is and continues to be material and failure shall continue unremedied for a period of 30 days after receipt by notice thereof from the Guarantor Administrative Agent or any Lender to the Company;
(i) the Company or any Material Subsidiary shall fail to make any payment (whether of written notice thereof; providedprincipal or interest) in respect of any Material Debt, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long when and as the Guarantor diligently pursues such remedy same shall become due and such payable (after all applicable grace periods) or (ii) any other event or condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) occurs and (b) above shall not affect in as a result any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it Material Debt has become due prior to its scheduled maturity, or the mandatory prepayment, repurchase, redemption or defeasance thereof is required, in each case within 60 days;
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Company or any Material Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any Material Subsidiary or for a substantial part of its assets; and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Company or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h)(i) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any Material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(i) the Company or any Material Subsidiary shall become unable, admit in writing or fail generally to pay its debts as they become due;
(j) one or more judgments for the payment of money in an aggregate amount (to the extent not covered by insurance) in excess of $20,000,000 shall be rendered against the Company, any Material Subsidiary or any combination thereof and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Company or any Material Subsidiary to enforce any such judgment;
(k) an ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect and, for within 30 days after the avoidance of doubt, without regard to the existence reporting of any cure or grace period before such failure by the RockGen Lessee becomes a Lease ERISA Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under pursuant to Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.5.02
Appears in 1 contract
Sources: Competitive Advance and Revolving Credit Facility Agreement (Readers Digest Association Inc)
Defaults. The occurrence of any one or more of the following events shall constitute an event of default ("Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected ") by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):Borrower under this Agreement:
(a) if Borrower shall default in the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make timely payment of any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and sum payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement in the performance of the RockGen Lessee under any of the Operative Documentsterms and conditions of, 30 any of the Obligations (or of any instruments evidencing the same, including, without limitation, the Note) or of any terms or conditions of the Merger Agreement or this Agreement and, with regard to a default other than relating to the timely payment of any sum, such default shall continue for a period of thirty (30) days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(eb) there shall have occurred either (i) a default if any warranty, representation or statement of fact made herein or furnished to Lender at any time by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness on behalf of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated MaturityBorrower, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paidCredomarka, or such default is not cured or waivedWeinstein (collectively, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(ft▇▇ "▇▇▇▇▇ors") the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove proves to have been incorrect in any material respect when made false or misleading in any material respect when made because or furnished;
(c) if either of the omission Obligors fails to state perform or observe any covenant, term, condition and/or obligation contained in, or breaches any provision of, the Merger Agreement, this Agreement or any instrument, document or agreement delivered by such Obligor to Lender, including, without limitation, the Loan Documents and the Other Financing Documents, and, with regard to a material fact and default other than relating to the timely payment of any sum, such incorrect or misleading representation is and continues to be material and default shall continue unremedied for a period of 30 thirty (30) days after following receipt of notice thereof;
(d) if there shall be a material default under any instrument, document or agreement delivered by either of the Guarantor Obligors, to Lender, including, without limitation, the Loan Documents and Other Financing Documents;
(e) in the event of loss, theft, substantial damage to or destruction of any material part of the Collateral, or the making of any levy on, seizure or attachment of, any material part of the Collateral which is not covered by insurance and/or replaced within thirty (30) days with substitute Collateral (with a value equal to or greater than the Collateral being replaced) satisfactory to secure Lender, in its reasonable discretion, as to the Obligations;
(f) if either of the Obligors shall execute or file a certificate or other instrument evidencing the legal change of name of such Obligor without furnishing Lender at least ten (10) days' prior written notice thereof; ;
(g) in the event any of the Obligors shall be dissolved or shall die;
(h) if Borrower or Credomarka shall fail to maintain its corporate existence in good standing;
(i) if there shall be filed by or against any of the Obligors any petition for any relief under the bankruptcy laws of the United States as now or hereafter in effect or under any insolvency, readjustment of debt, dissolution or liquidation law or statute now or hereafter in effect (and whether any such action or proceeding shall be at law, in equity or under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, receivership, liquidation or dissolution law or statute) provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up with respect to an additional 60 involuntary petition, that such petition is not dismissed within ninety (90) days;
(j) if any of the Obligors shall admit in writing its inability to pay its debts as they mature or make a general assignment for the benefit of creditors;
(k) if any of the Obligors shall become insolvent or make or send notice of an intended bulk transfer, so long as or fail, after demand, to furnish any financial information or permit the Guarantor diligently pursues such remedy and such condition is reasonably capable inspection of being remedied within such additional 60-day period. The grace periods set forth books or records of account;
(l) if any of the Obligors shall voluntarily or otherwise suspend or interrupt the transaction of its usual business for ten (10) business days other than by reason of strikes or force majeure; or
(m) if any petition or application to any court or tribunal, at law or in Section 7.1(a) and (b) above shall not affect in equity, be filed by or against any way of the right hereunder Obligors for the appointment of any Beneficiary entitled to a payment of receiver or any amount payable to it, or performance of trustee for any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingObligors.
Appears in 1 contract
Defaults. The Upon the happening of any of the following events shall constitute an (collectively, "Event Events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity"):
(a) the Guarantor or the RockGen Lessee under the Facility Lease if Borrower shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable of any Obligation under such Facility Lease this Agreement or this Guaranty within five (5) days after the same shall become due thereunderany other Loan Document; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor if Borrower shall fail to comply with its covenants set forth any term, condition, covenant, warranty or representation contained in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) Articles 6 or 8.4 (assignment of Guaranty) 9 of this Guaranty.Agreement; or
(c) if Borrower shall fail to comply with any term, condition, covenant or warranty of or in this Agreement other than in Articles 6 or 9 of this Agreement, and such failure continues for a period in excess of fifteen (15) days after notice thereof is given by Lender to Borrower; or
(d) the Guarantor if Borrower shall fail to perform or observe comply with any term, condition, covenant, obligation warranty or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to representation in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee other Loan Documents or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;between Lender and Borrower; or
(e) there if Borrower shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness cease to be due and payable prior to its Stated MaturitySolvent, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of make an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors, call a meeting of its creditors to obtain any general financial accommodation, suspend business or if any case under any provision of the Bankruptcy Code, including provisions for reorganizations, shall be commenced by or against Borrower or if a receiver, trustee or equivalent officer shall be appointed for all or any of the assets of Borrower; or
(vf) admits if any statement or representation contained in writing its inability any financial statement or certificate delivered by Borrower to generally pay its debts as such debts become dueLender shall be false, in any material respect; or takes any comparable action under any foreign laws relating to insolvency;when made; or
(g) an involuntary case or other proceeding shall be commenced if any federal tax lien is filed of record against the Guarantor any Borrower or any Significant Subsidiary seeking guarantor(s), if any, and is not bonded or discharged within fifteen (i15) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiarydays; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;or
(h) if Borrower's independent public accountants shall refuse to deliver any representation or warranty made financial statement required by the Guarantor herein this Agreement; or
(i) if a judgment for more than Twenty-Five Thousand and 00/100 Dollars ($25,000.00) shall prove to have been incorrect be entered against Borrower in any material action or proceeding and shall not be stayed, vacated, bonded, paid, discharged or applied in good faith within thirty (30) days, except a judgment where the claim is covered by insurance and the insurance company has accepted liability therefor in a Record; or
(j) if any obligation of Borrower in respect when made or misleading of Indebtedness (other than Indebtedness to Lender) exceeding in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues aggregate $25,000.00 shall be declared to be material or shall become due and unremedied for a period of 30 days after receipt by payable prior to the Guarantor of written notice thereof; provided, however, that if stated maturity thereof or such condition canobligation shall not be remedied within paid as and when the same becomes due and payable; or there shall occur any event or condition which constitutes an event of default under any mortgage, indenture, instrument, agreement or evidence of Indebtedness relating to any obligation of Borrower in respect of any such 30-day periodIndebtedness the effect of which is to permit the holder or the holders of such mortgage, then indenture, instrument, agreement or evidence of Indebtedness, or a trustee, agent or other representative on behalf of such holder or holders, to cause the period within Indebtedness evidenced thereby to become due prior to its stated maturity; or
(k) upon the happening of any Reportable Event which to remedy such condition Lender in its sole discretion determines might constitute grounds for the termination of any Plan, or if a trustee shall be extended up appointed by an appropriate United States District Court or other court of administrative tribunal to an additional 60 daysadminister any Plan, so long as or if the Guarantor diligently pursues such remedy Pension Benefit Guaranty Corporation shall institute proceedings to terminate any Plan or to appoint a trustee to administer any Plan; or
(1) upon the occurrence and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder continuance of any Beneficiary entitled Material Adverse Effect, which in the sole and absolute opinion of Lender, impairs Lender's security, increases Lender's risks; or impairs the Borrower's ability to a payment of any amount payable to it, perform hereunder or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.Loan Documents; or
Appears in 1 contract
Defaults. The If any of the following events shall constitute occur and be continuing, (each an "“Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity”):
(a) the Guarantor or the RockGen Lessee under the Facility Lease Borrower shall fail to make pay any payment with respect to Periodic Rent principal of or interest on the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) Note when due and payable under such Facility Lease or this Guaranty within payable, which failure shall continue for five (5) days after the same shall become due thereunder; ordate when due;
(b) any representation or warranty made by the Guarantor Borrower herein or made in any certificate or financial statement furnished to the RockGen Lessee Lender hereunder or under any of the Loan Documents shall fail prove to have been false or misleading in any respect when made or omit to state a material fact necessary to make any other amount payable representation, warranty, certification or statement not misleading in light of the circumstances under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicablewhich it was furnished;
(c) The Guarantor default in the performance of any agreement, covenant, term or condition contained herein or in any Loan Document to be performed by the Borrower which shall fail continue for ten (10) days after the giving of notice thereof to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.the Borrower by the Lender;
(d) a Default under the Guarantor shall fail to perform Mortgage or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative other Loan Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there an event of default under any loan agreement, credit agreement, security agreement, guaranty agreement, lease agreement or other agreement now existing or hereafter entered into by the Borrower shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) and shall not have been remedied during such time as USD 1,000,000 or more individually or in the aggregate that has caused the holders thereof to declare is outstanding under such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such defaultagreement;
(f) any license, consent or approval of any governmental body or other regulatory authority required for the Guarantor making and performance of this Agreement or any Significant Subsidiary pursuant instrument contemplated hereby or thereby shall have been revoked, withdrawn, materially modified or withheld or shall otherwise fail to or within remain in full force and effect;
(g) Any of the meaning of any Bankruptcy Lawfollowing events shall occur:
(i) the Borrower commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy United States Code or any bankruptcy, insolvency or other similar law as now or hereafter in effect, or any successor thereto (the “Bankruptcy Code”); or
(ii) an involuntary case is commenced against the Borrower under the Bankruptcy Code and relief is ordered against the Borrower or the petition is controverted but is not dismissed or stayed within sixty (60) days after the commencement of the case; or
(iii) a custodian (as defined in the Bankruptcy Code) or a similar official is appointed for, or takes charge of, all or substantially all of the property of the Borrower and such appointment is not terminated within sixty (60) days; or
(iv) the Borrower commences any other proceeding under any reorganization, arrangement, readjustment of debt, relief of debtors, dissolution, insolvency, liquidation or similar law of any jurisdiction relating to the Borrower (whether now or hereafter in effect), or there is commenced against the Borrower any such proceeding which remains undismissed or unstayed for a period of sixty (60) days or the Borrower is adjudicated insolvent or bankrupt; or the Borrower fails to controvert in a timely manner any such case under the Bankruptcy Code or any such proceeding, or any order of relief or other order approving any such case or proceeding is entered; or
(v) the Borrower by any act or failure to act indicates its consent to, approval of or acquiescence in any such case or proceeding or in the appointment of a trustee, receiver, liquidator, any custodian of or other similar official with respect to for it or any substantial part of its property or (iii) the winding-up suffers any such appointment to continue undischarged or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 ninety (90) days;; or
(vi) the Borrower makes a general assignment for the benefit of creditors; or
(vii) any corporate action is taken by the Borrower for the purpose of effecting any of the foregoing.
(h) any representation an order, judgment or warranty made by decree shall be entered, without the Guarantor herein shall prove to have been incorrect in any material respect when made application, approval or misleading in any material respect when made because consent of the omission to state Borrower by any court of competent jurisdiction, approving a material fact petition seeking reorganization of the Borrower or seizure or attachment of all or a substantial part of the Borrower’s assets, and such incorrect order, judgment or misleading representation is decree shall continue unstayed and continues to in effect for any period of sixty (60) consecutive days; or
(i) judgments or orders for the payment of monies in excess of USD 100,000 in aggregate shall be material rendered against the Borrower and unremedied such judgments or orders shall continue unsatisfied, or unstayed for a period of 30 thirty (30) days after receipt then the Lender may by the Guarantor of written notice thereof; to the Borrower (i) immediately terminate the commitment of the Lender hereunder or (ii) declare all Payments under, and all interest accrued to the date of such declaration on, the Note together with all other amounts due hereunder or under any of the Loan Documents, to be forthwith due and payable, whereupon the same shall become forthwith due and payable (provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition no notice or declaration shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy required and such condition is reasonably capable amounts shall be immediately due and payable upon the occurrence of being remedied within such additional 60-day period. The grace periods set forth an event described in Section 7.1(a4.1(h) or (i) hereof) and (biii) above shall not affect in exercise any way the right hereunder of any Beneficiary entitled remedies to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when which it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingentitled by any Loan Document or by applicable law.
Appears in 1 contract
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):a Default under this Agreement:
(a) The Recipient fails to repay the Guarantor amount of the County ReGrant, and interest thereon, according to the terms of this Agreement or any other payment required by any of the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (County ReGrant Documents, including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; orObligations;
(b) The Recipient ceases to use the Guarantor or Facility in connection with the RockGen Lessee shall fail to make any other amount payable under any Operative Document after manufacture and/or assembly of wood products, as contemplated in this Agreement, the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee Application, and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicableCommitment Letter;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.Any Grant proceeds are used for any purpose other than Eligible Project Costs;
(d) Any statement made in any certificate, report or opinion (including legal opinions), financial statement, or other document furnished in connection with the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) Grant was incorrect in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereofwhen made;
(e) there The Recipient breaches any covenant, representation, warranty, or other provision of this Agreement, which breach is not cured within 30 calendar days from the date the Recipient receives (as provided in Section 6.01 below) written notice of the breach from the County; provided, however that the Recipient shall have occurred either (i) not receive a default by the Guarantor or 30 calendar day cure period under this subsection for any Restricted Subsidiary under any instrument or instruments under breach for which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or a specific Default set forth in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such defaultthis Section;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
The Recipient breaches (i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case covenant, representation, warranty, or other proceeding shall be commenced against the Guarantor provision in any other County ReGrant Document, which breach continues beyond any applicable grace or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectcure period, or (ii) the appointment provisions of a trusteeSections 3.02 (a), receiver(b), liquidator(f), custodian (i), (m), (p), and (r) of this Agreement;
(g) Any portion of, or other similar official with respect to it interest in, the Facility is sold, leased, subleased, transferred, encumbered, or any substantial part of its property or (iii) otherwise conveyed, without the winding-up or liquidation prior written consent of the Guarantor County or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 daysthe Department;
(h) The Recipient fails to comply with any representation requirement of any Governmental Authority within 30 days after written notice of the requirement is made or warranty made within any other time period set by the Guarantor herein shall prove Governmental Authority; or if any proceeding is commenced or action taken to have been incorrect enforce any remedy for a violation of any requirement of a Governmental Authority;
(i) The Project is not completed, as determined in any material respect when made or misleading in any material respect when made because the sole discretion of the omission to state County, by the Completion Date;
(j) A default or event of default occurs under the terms of any bond, debenture, note, or other evidence of indebtedness of the Recipient and remains uncured beyond any applicable grace or cure period;
(k) Final judgment for the payment of money in excess of $1,000,000 is rendered against the Recipient and is not discharged or a material fact and such incorrect stay of execution thereon or misleading representation a bond is and continues to be material and unremedied not procured within 30 days from the date of entry thereof, or if thereafter the judgment remains unsatisfied for a period of 30 days after receipt the termination of any such stay of execution thereon or bond;
(l) Any court of competent jurisdiction makes a final order (i) adjudicating the Recipient a bankrupt, (ii) appointing a trustee or receiver of a substantial part of the property of the Recipient, (iii) approving a petition for, or affecting an arrangement in, bankruptcy, a reorganization pursuant to federal bankruptcy law, or any other judicial modification or alterations of the rights of the County or of other creditors of the Recipient, (iv) assuming custody or sequestering any substantial part of the property of the Recipient, or (v) attaching or garnishing any substantial part of the property of the Recipient; or if the Recipient (A) files such petition, or (B) takes or consents to any other actions seeking any such judicial order, or (C) makes an assignment for the benefit of creditors, or (D) fails to pay debts generally as they become due, or (E) makes an admission in writing of inability to pay debts generally as they become due;
(m) Without the prior written consent of the County and the Department, the Recipient (i) sells or transfers all or substantially all of its business assets, (ii) begins any proceeding to dissolve or liquidate, (iii) changes the form of business entity through which it presently conducts its business, or (iv) merges or consolidates;
(n) Without the prior written consent of the County and the Department, the Recipient is dissolved by operation of law or in any other manner;
(o) The County makes a good faith determination that the Guarantor Recipient’s tangible net worth has fallen below $65,000,000 as of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up any quarterly financial statement;
(p) The Recipient relocates to an additional 60 daysarea which is not a Priority Funding Area, so long as that term is defined in Title 5-7B of the Guarantor diligently pursues such remedy State Finance and such condition Procurement Article of the Annotated Code of Maryland.
(q) A default or event of default occurs under the terms of (i) any of the other County ReGrant Documents, (ii) the DBED Grant Agreement, or (iii) any of the Loan Documents;
(r) Without the written consent of the County and the, any direct or indirect interest in the Recipient is reasonably capable sold, assigned, or transferred; or
(s) As of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above the Completion Date, the amount of the County ReGrant shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure exceed 70% of the RockGen Lessee to pay or perform costs of the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingProject.
Appears in 1 contract
Defaults. The following events shall constitute an "Event If Tenant: (i) fails to pay when due any installment or other payment of Default" hereunder Rent, or to keep in effect any insurance required to be maintained hereunder; or (whether any such event shall be voluntary ii) vacates or involuntary abandons the Premises or come about or be effected by operation fails to accept tender of law or pursuant to or in compliance with any judgment, decree or order possession of any court the Premises or any ordersignificant portion thereof; or (iii) becomes insolvent, rule makes an assignment for the benefit of creditors, files a voluntary bankruptcy or regulation an involuntary petition in bankruptcy is filed against Tenant which petition is not dismissed within sixty (60) days of its filing; or (iv) fails to cause to be released any Governmental Entity):
(a) mechanic’s liens filed against the Guarantor Premises or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value Building within twenty (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (520) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after date the same shall become due thereunder and have been filed or recorded; or (v) fails to observe or perform according to the provisions of Article 17 or 18 within the time periods specified in such failure shall have continued from a period of ten Articles, or (10vi) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail fails to perform or observe any covenantof the other covenants, obligation conditions or agreement agreements contained herein on Tenant’s part to be kept or performed and such failure shall continue for thirty (30) days after notice thereof is given by or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) on behalf of Landlord; or (bvii) if the interest of Tenant under this Section 7.1Lease shall be offered for sale or sold under execution or other legal process; or (viii) if Tenant makes any transfer, assignment, conveyance, sale, pledge, disposition of all or a substantial portion of Tenant’s property, then any such event or conduct shall constitute a “default” hereunder. All notices required to be given under this paragraph shall be in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty lieu of, and agreement with respect tonot in addition to any notice requirements imposed by law, any nonmonetary obligationstatute, covenant ordinance, governmental regulation or agreement requirement of the RockGen Lessee under United States, the State in which the Building is located or any local government authority or agency or any political subdivision thereof, now or hereafter in effect. If Tenant or any guarantor hereunder files a voluntary petition pursuant to the United States Bankruptcy Reform Act of 1978, as the Operative Documentssame may be from time to time amended (the “Bankruptcy Code”), 30 or take the benefit of any insolvency act or be dissolved, or if an involuntary petition or proceeding for dissolution or liquidation is filed against Tenant pursuant to the Bankruptcy Code and said petition is not dismissed within thirty (30) days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paidfiling, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or if a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order proceeding for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it trustee or a receiver is commenced for Tenant’s business or all or substantially all a portion of its property;
assets and the appointment of such receiver is not vacated within thirty (iv30) makes a general days after such appointment, or if it shall make an assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding , then Landlord shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 have all of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter rights provided for in effect, or (ii) the appointment event of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation nonpayment of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by Rent Tenant hereby stipulates to the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because lifting of the omission to state automatic stay in effect and relief from such stay in the event Tenant files a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by petition under the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (andBankruptcy Code, for the avoidance purpose of doubtLandlord pursuing its rights and remedies against Tenant and/or a guarantor under this Lease. If any alleged default on the part of Landlord hereunder occurs, without regard Tenant shall give written notice to Landlord in the manner herein set forth and shall afford Landlord a reasonable opportunity to cure any such default. In addition, Tenant shall send notice of such default by certified or registered mail, postage prepaid, to the existence holder of any Mortgage whose address Tenant has been provided in writing, and shall afford such Mortgage holder a reasonable opportunity to cure any alleged default on Landlord’s behalf. In no event will Landlord be responsible for any lost profits or grace period before such failure interruption of business as a result of any alleged default by Landlord hereunder. All defaults by Tenant of any covenant or condition of this Lease shall be deemed by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may parties hereto to be exercised until a Calpine Guaranty Event of Default has occurred and is continuingmaterial.
Appears in 1 contract
Sources: Office Lease (Medivation, Inc.)
Defaults. The following events shall constitute an "“Event of Default" hereunder ” of the Lease Agreement:
(whether i) With respect to any such event shall be voluntary or involuntary or come about or be effected by operation non-monetary obligations of law or pursuant to or in compliance with any judgment, decree or order of any court either Party under the Lease Agreement or any order, rule or regulation monetary obligation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee a Party under the Facility Lease Agreement that is not a sum certain, a Party shall fail have failed to make perform or comply in any payment material respect with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder obligation and such failure shall have continued from a period of ten for thirty (1030) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participantnon-defaulting Party, or if the Owner Lessorcuring of such non-monetary default is reasonably feasible by the defaulting Party, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition canbut not be remedied within such 30-day period, then the period within which to remedy defaulting Party shall not have commenced the curing of such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied failure within such additional 180-thirty (30) day period, or having so commenced, shall thereafter have failed or neglected to prosecute or complete the curing of such Event of Default with diligence and dispatch within ninety (290) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written original notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;; or
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of Either a Custodian of it or for all or substantially all of its property;
(iv) makes Party shall have made a general assignment for the benefit of its creditors; or
(v) admits , or shall have admitted in writing its inability to generally pay its debts as such debts they become due; due or takes shall have filed a petition in bankruptcy, or shall have been adjudicated bankrupt or insolvent, or shall have filed a petition seeking any comparable action reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any foreign laws relating present or future statute, law or regulation, or shall have filed an answer admitting, or shall have failed reasonably to insolvency;contest, the material allegations of a petition filed against it in any such proceeding, or shall have sought or consented to or acquiesced in the appointment of any trustee, receiver or liquidator for such Party; or
(giii) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking Either (i) within ninety (90) days after the commencement of any proceeding against a Party or any trustee, receiver or liquidator of such Party seeking any reorganization, arrangement, composition, readjustment, liquidation, reorganization dissolution or other similar relief with respect to it under any present or its debts under Title 11 of the Bankruptcy Code future statute, law, rule or any bankruptcyregulation, insolvency or other similar law now or hereafter in effectsuch proceeding shall not have been dismissed, or (ii) if, within ninety (90) days after the appointment without the consent or acquiescence of either a Party or any trustee, receiver, liquidator, custodian receiver or other similar official with respect to it liquidator of such party or of any substantial material part of its property or (iii) the winding-up or liquidation of the Guarantor or properties, such Significant Subsidiaryappointment shall not have been vacated; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;or
(hiv) With respect to any representation or warranty made by monetary obligation of a Party under the Guarantor herein Lease Agreement that is a sum certain, such Party shall prove have failed to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and pay such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 amount within ten (10) business days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then thereof from the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingother Party.
Appears in 1 contract
Sources: Memorandum of Understanding
Defaults. The following events After the Effective Date, (i) if either Member fails to perform any of its obligations hereunder, breaches any of the terms, conditions or covenants of this Agreement, or (ii) in the event of an uncured default by any Affiliate under the Initial Management Agreement or the Contribution Agreement as well as any other agreement entered into between the Company and Sunrise or an Affiliate of Sunrise (collectively, the "Affiliate Agreements") or (iii) in the event of any transfer, encumbrance, assignment or change of control by Initial Property Manager in violation of the terms of the Initial Management Agreement, as if Initial Property Manager or such Affiliate were a Member, then the other Member ("Nondefaulting Member") shall constitute have the right to give such party ("Defaulting Member" (which, in the case of any default by Sunrise or an Affiliate under clause (ii) or (iii) above, shall be Sunrise)) a notice of default ("Event Notice of Default" hereunder "). The Notice of Default shall set forth the nature of the obligation which the Defaulting Member (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgmentits Affiliate, decree or order of any court or any order, rule or regulation of any Governmental Entity):if applicable) has not performed.
(a) If such default is not curable by the Guarantor payment or expenditure of money and if, within the RockGen Lessee under sixty (60) day period following receipt of the Facility Lease Notice of Default or within such shorter time period that may be specified in the Affiliate Agreement, the Defaulting Member (or its Affiliate, if applicable) in good faith commences to perform such obligation and cure such default and thereafter prosecutes to completion with diligence and continuity the curing thereof and cures such default within a reasonable time (not to exceed one hundred eighty (180) days), then it shall fail be deemed that the Notice of Default was not given and the Defaulting Member shall lose no rights hereunder. If, within such sixty (60)day period the Defaulting Member (or its Affiliate, if applicable) does not commence in good faith the curing of such default or does not thereafter prosecute to make any payment completion with respect to Periodic Rent or diligence and continuity the Termination Value (including curing thereof, then a "Default shall exist and the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after Nondefaulting Member shall have the same shall become due thereunder; orrights set forth in Section 12.1(d).
(b) If such default is curable by the Guarantor payment or expenditure of money other than a default described in Section 4.6 which sets forth its own time periods for cure, and if such sums of money shall be paid within thirty (30) days after receipt of the RockGen Lessee Notice of Default with respect thereto, then it shall fail to make any other amount payable under any Operative Document after be deemed that such Notice of Default was not given and the same 51 57 Defaulting Member shall become due thereunder lose no rights hereunder. If such sums are not so paid within such thirty (30) day period, then a "Default" shall exist and such failure the Nondefaulting Member shall have continued from a period of ten the rights set forth in Section 12.1(d) in addition to the rights under Section 4.6 (10) Business Days after receipt by to the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as extent applicable;).
(c) The Guarantor If such default arises out of a violation of Section 10.1 or the violation by the Initial Property Manager of the transfer, assignment or change of control provisions of the Initial Management Agreement, then, a "Default" shall fail to comply with its covenants exist and the Nondefaulting Member shall immediately have the rights set forth in Section 3.3 (transfer of RockGen Lessee ownership12.1(d), 3.6 (Guarantor merger) without the obligation to provide any notice or 8.4 (assignment of Guaranty) of this Guarantycure periods.
(d) If any Default exists, the Guarantor Nondefaulting Member shall fail have the right to perform terminate this Agreement by giving the Defaulting Member written notice thereof, whereupon such default may be treated by the Nondefaulting Member as a dissolution of the Company, and the Nondefaulting Member shall be the Liquidating Member. In addition, if the Defaulting Member is Sunrise, SHP shall have the right to replace Sunrise as Managing Member and shall also have the right to cause the Company to terminate the Initial Management Agreement. Failure by a Nondefaulting Member to give any notice of a default as specified herein, or observe any covenantfailure to insist upon strict performance of any of the terms of this Agreement, obligation shall not constitute a waiver of any such breach or agreement any of the terms of this Agreement. No breach shall be waived nor shall any duty to be performed be altered or observed modified except by it under any Calpine Document (other than any covenant, obligation written instrument. One or agreement referred more waivers or failure to in clauses (a) give notice of default shall not be construed as a waiver of a subsequent or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement continuing breach of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingcovenant.
Appears in 1 contract
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or You are in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under default if any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Lawfollowing happens:
(i) commences a voluntary case;You do not pay us, within ten (10) days of when it is due, any Payment or other payment that you owe us under this Master Agreement, any Schedule or any Note or that you owe under any other agreement, loan, lease or other financial arrangement that you have with us.
(ii) consents Any of the financial information that you give us is not true and complete in all material respects, or you fail to tell us anything that would make the entry of an order for relief against it in an involuntary case;financial information not misleading.
(iii) consents You do something you are not permitted to do, or you fail to do anything that is required of you, under this Master Agreement, any Schedule or any other lease, loan or other financial arrangement that you have with us.
(iv) An event of default occurs for any other lease, loan or obligation of yours that exceeds $75,000 in the appointment aggregate.
(v) You file bankruptcy, or involuntary bankruptcy is filed against you and such involuntary bankruptcy is not dismissed within sixty (60) days.
(vi) You are subject to any other insolvency proceeding other than bankruptcy (for example, a receivership action or an assignment for the benefit of creditors) and such proceeding that is involuntary is not dismissed within sixty (60) days.
(vii) Without our permission, you sell all or substantially all of your assets, merge or consolidate. Permission for merger shall not be unreasonably withheld. However, without violating the provisions of this clause, you may consolidate with or merge with a corporation or other entity organized under the laws of one of the states of the United States or the District of Columbia (the surviving entity, a "successor"), or sell (except by means of a Custodian of it or for sale and leaseback arrangement) all or substantially all of its property;business and assets to a transferee (the "transferee"), on the condition that any successor or transferee either expressly or by operation of law assume in writing all of your obligations pursuant to this Master Agreement, and that the net tangible assets and the net worth (determined in accordance with generally accepted accounting principles) of the successor or transferee after the consolidation, merger or sale shall be at least equal to your net tangible assets and the net worth, immediately prior to the consolidation, merger or sale.
(ivviii) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state There is a material fact and such incorrect adverse change in your consolidated financial condition, business or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingoperations.
Appears in 1 contract
Sources: Master Loan and Security Agreement (Appliedtheory Corp)
Defaults. The occurrence of any of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):a default hereunder:
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail The failure of Debtor to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease on any indebtedness to Secured Party pursuant to the Note, or this Guaranty within five (5) days after a default in any provision of the same shall become due thereunder; orNote secured hereby or any other encumbrance or agreement securing the Note;
(b) The breach of or failure to perform promptly any obligation or covenant set forth in this Agreement, the Guarantor Note or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after agreement secured hereby or securing the same shall become due thereunder and such failure shall have continued from a period of Note within ten (10) Business Days days after receipt by notice thereof or if the RockGen Lessee nature of the breach is such that it cannot reasonably be cured within such ten (10) day period, for a period (which period shall not exceed thirty (30) days) which is reasonably required to effect a cure, so long as Debtor commences the cure within such ten (10) day period and the Guarantor of written notice of Debtor diligently pursues such failure by the RockGen Lessee and/or the Guarantor, as applicablecure;
(c) The Guarantor shall fail suspension of business, insolvency, failure generally to comply pay debts as they became due, in each case on the part of Debtor's business; the concealment or removal of any substantial portion of Debtor's property with the intent to hinder, delay or defraud any one or more creditors; the existence or creation of any material lien, including without limitation any tax or judgment lien, upon the Collateral; an assignment for the benefit of creditors; the commencement of any proceedings against Debtor (under the Bankruptcy Code or otherwise) seeking to adjudicate it bankrupt or insolvent, or seeking reorganization, arrangement, adjustment or composition of it or its covenants set forth in Section 3.3 debts under any law relating to Initial DV MF bankruptcy, insolvency or reorganization or relief of debtors or seeking the appointment of a receiver, trustee or custodian for Debtor or for the Collateral and it is not dismissed within sixty (transfer 60) days after its filing, or is filed by Debtor, or Debtor takes any action to authorize any of RockGen Lessee ownership)the foregoing matters; or the institution by Debtor of any liquidation, 3.6 (Guarantor merger) dissolution or 8.4 (assignment of Guaranty) of this Guaranty.reorganization proceedings with respect to Debtor;
(d) the Guarantor shall fail The failure to perform effectively and promptly discharge, stay or observe any covenantindemnify against, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenantSecured Party's reasonable satisfaction, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant lien or agreement of the RockGen Lessee under attachment against any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereofCollateral;
(e) there shall have occurred either (i) a default Any representation or warranty made by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually Debtor contained herein or in the aggregate that has caused the holders thereof any other document delivered by or on behalf of Debtor to declare such Indebtedness to Secured Party in connection herewith shall be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days false or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment misleading when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such defaultmade;
(f) Any guaranty of the Guarantor obligations described herein ceases to be effective, except pursuant to a written release from Secured Party, or any Significant Subsidiary pursuant guarantor denies liability thereunder, or one of the events described in Paragraph 3(c) hereof occurs with respect to any guarantor, or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action default occurs under any foreign laws relating to insolvencysuch guaranty;
(g) an involuntary case or other proceeding shall be commenced against If Debtor is a corporation, the Guarantor or occurrence of any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code following without the Secured Party's written consent: the sale, pledge or assignment by the shareholders of Debtor of any bankruptcy, insolvency shares of the stock representing thirty percent (30%) or more of the outstanding stock of Debtor; the transfer not in the ordinary course of Debtor's business of more than thirty percent (30%) of the value of Debtor's assets; the merger or consolidation of Debtor with another company or entity; the change of the Debtor's name; the conversion of Debtor's legal structure to an entity form other similar law now than a corporation or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 daysDebtor;
(h) The occurrence of any representation default or warranty made event of default under any other document or agreement securing or guaranteeing any of the obligations secured by the Guarantor herein shall prove Agreement; or the occurrence of any default or event of default with respect to have been incorrect in any material indebtedness of Debtor to any third party that causes such third party to declare such indebtedness due prior to its scheduled date of maturity; or
(i) The occurrence of any default or event of default under or with respect when made or misleading in to any material respect when made because obligation of Debtor to any affiliate of Secured Party (for the omission to state a material fact and such incorrect purposes of this subparagraph, "affiliate" is defined as Hitachi Credit America Corp. or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; providedany entity owned or controlled, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, directly or performance of any obligationindirectly, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of DefaultHitachi Credit America Corp.); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 1 contract
Sources: Security Agreement (Board of Trade of the City of Chicago Inc)
Defaults. The E-Docs and HCIS shall be deemed to be in default of the terms and conditions of this Agreement upon any of the following events shall constitute (an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity"):
(a) the Guarantor or the RockGen Lessee under the Facility Lease E-Docs shall fail to make any payment with respect (i) complete its obligations under Section 1(i) (A) and (B) of this Agreement by the end of the Forbearance Period, (ii) cause to Periodic Rent or the Termination Value be delivered to ▇▇▇▇▇▇▇▇▇ within ten (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (510) days after the same shall become due thereunderEffective Date (A) the ▇▇▇▇▇▇▇▇▇ Remaining Shares as defined in Paragraph 5(b) herein; orand (B) the Warrant, and (iii) cause to be delivered to Blank Rome ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP within two (2) days after the Effective Date $35,000 in immediately available funds in the manner provided in Section 6 of this Agreement.
(b) the Guarantor or the RockGen Lessee E-Docs shall fail to make perform any of E-Docs' obligations under this Agreement other amount payable under any Operative Document after the same shall become due thereunder than those described in Section 9(a) and such failure shall have continued from a period of continue for ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after E-Docs' receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee ▇▇▇▇▇▇▇▇▇ or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;CTI.
(ec) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness Any of the Guarantor representations or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (warranties made by E-Docs or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness HCIS herein is determined to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:materially false.
(i) commences a voluntary E-Docs shall commence any case;
(ii) consents , proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to the entry bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief against entered with respect to it, or seeking to adjudicate it in an involuntary case;
(iii) consents to the appointment of a Custodian of it bankrupt or for all insolvent, or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) reorganization, arrangement, adjustment, winding-up, liquidation, reorganization dissolution, composition or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, debts; or (ii) the appointment there shall be commenced against E-Docs any case, proceeding or other action of a trusteenature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment, receiveror (B) remains undismissed, liquidatorundischarged or unbonded for a period of forty-five (45) days; or (iii) there shall be commenced against E-Docs any case, custodian proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar official with respect to it process against all or any substantial part of its property assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within forty-five (45) days from the entry thereof; or (iv) E-Docs shall take any action indicating its consent to, approval of, or acquiescence in any acts set forth in clause (i), (ii), or (iii) the windingabove; or (v) E-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding Docs shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect admit in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee writing its inability to pay or perform the same when it has its debts as they become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingdue.
Appears in 1 contract
Sources: Forbearance Agreement (Applied Voice Recognition Inc /De/)
Defaults. The (a) Each of the following events shall constitute an "“Event of Default" ” hereunder (whether any whatever the reason for such event of default and whether it shall be voluntary or involuntary involuntary, or come about or be effected by operation of law law, or be pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entityadministrative or governmental body):
(a1) the Guarantor or the RockGen if Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) pay when due any sum under this Agreement and payable under such Facility Lease failure shall continue for a period of three business days after oral, facsimile, or written notice has been given by Lessor to Lessee; (2) if Lessee shall fail to perform any covenant or agreement contained herein, and such failure shall continue for a period of fifteen (15) days after notice thereof shall have been given in writing; (3) if any representation or warranty made by Lessee in this Guaranty within five Agreement or any agreement, document or certificate delivered by the Lessee in connection herewith is or shall become incorrect in any material respect; (4) if Lessee shall operate the Aircraft in violation of any applicable law, regulation, rule or order of any governmental authority having jurisdiction thereof or shall operate the Aircraft when the insurance required hereunder shall not be in effect; (5) if any proceedings shall be commenced under any bankruptcy, insolvency, reorganization, readjustment of debt, receivership or liquidation law or statute of any jurisdiction; or (6) if any such proceedings shall be instituted against either Party and shall not be withdrawn or terminated within thirty (30) days after the same shall become due thereunder; ortheir commencement. BLACKSTONE DRY LEASE - PAGE 6 OF 11
(b) Upon the Guarantor occurrence of any Event of Default Lessor may, at its option, exercise any or all remedies available at law or in equity, including, without limitation, any or all of the RockGen following remedies, as Lessor in its sole discretion shall elect: (1) by notice in writing to terminate this Agreement immediately, whereupon all rights of the Lessee to the use or possession of the Aircraft or any part thereof shall absolutely cease and terminate but Lessee shall fail to make any other amount payable under any Operative Document after remain liable as hereinafter provided; and thereupon Lessee, if so requested by Lessor, shall at its expense promptly return the Aircraft and Aircraft Documentation as required by this Agreement or Lessor, at its option, may enter upon the premises where the Aircraft or Aircraft Documentation are located and take immediate possession of and remove the same shall become due thereunder by summary proceedings or otherwise. Lessee specifically authorizes Lessor’s entry upon any premises where the Aircraft or Aircraft Documentation may be located for the purpose of, and such failure shall waives any cause of action it may have continued from arising from, a period peaceful retaking of ten the Aircraft or Aircraft Documentation; or (102) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement cause to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any hereunder. Lessee agrees to pay all costs and expenses incurred by Lessor for such performance and acknowledges that such performance by Lessor shall not be deemed to cure said Event of Default.
(c) Lessee shall be liable for all costs, charges and expenses, including reasonable legal fees and disbursements, incurred by Lessor by reason of the Operative Documents, 30 days after receipt by the Guarantor occurrence of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee any Event of Default or the Pass Through Trustee; providedexercise of Lessor’s remedies with respect thereto. No remedy referred to herein is intended to be exclusive, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition but each shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy cumulative and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect in addition to any other obligation, covenant remedy referred to above or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually otherwise available to Lessor at law or in equity. Lessor shall not be deemed to have waived any default, Event of Default or right hereunder unless the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default same is acknowledged in writing by the Guarantor or any Restricted Subsidiary in the payment when due duly authorized representative of Lessor. No waiver by Lessor of any portion default or Event of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding Default hereunder shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder be, or be construed to be, a waiver of any Beneficiary entitled to a payment of any amount payable to it, future or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, subsequent default or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided. The failure or delay of Lessor in exercising any rights granted it hereunder upon any occurrence of any such right upon the continuation or recurrence of any such contingencies or similar contingencies, however, notwithstanding and any single or partial exercise of any particular right by Lessor shall not exhaust the foregoing, no Lease Event same or constitute a waiver of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingany other right provided herein.
Appears in 1 contract
Sources: Master Aircraft Dry Lease Agreement (Blackstone Group L.P.)
Defaults. The Tenant further agrees that any one or more of the following events shall constitute an "Event be considered events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant default as said term is used herein, that is to or in compliance with any judgmentany, decree or order of any court or any order, rule or regulation of any Governmental Entity):if
(a) the Guarantor Tenant shall be adjudged an involuntary bankrupt, or the RockGen Lessee a decree or order approving, as properly filed, a petition or answer filed against Tenant asking recognition of Tenant under the Facility Lease Federal bankruptcy law as now or hereafter amended, or under the laws of any State, shall fail to make be entered, and any payment with respect to Periodic Rent such decree or the Termination Value judgment or order shall not have been vacated or set 45 aside within sixty (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (560) days after from the same shall become due thereunderdate of the entry or granting thereof; or
(b) Tenant shall file or admit the Guarantor jurisdiction of the court and the material allegations contained in, any petition in bankruptcy, or any petition pursuant or purporting to be pursuant to the RockGen Lessee Federal bankruptcy laws as now or hereafter amended, or Tenant shall fail institute any proceedings or shall give its consent to the institution of any proceedings for any relief of Tenant under any bankruptcy or insolvency laws or any laws relating to the relief of debtors, readjustment of indebtedness, reorganization, arrangements, composition or extension: or
(c) Tenant shall make any other amount payable under assignment for the benefit of creditors or shall apply for or consent to the appointment of a receiver for Tenant or any Operative Document after of the property of Tenant; or
(d) The Leased Premises are levied upon by any revenue officer or similar officer, or
(e) A decree or order appointing a receiver of the property of Tenant shall be made and such decree or order shall not have been vacated or set aside within sixty (60) days from the date of entry or granting thereof, or
(f) Tenant shall abandon the Leased Premises or vacate the same during the tem hereof; or
(g) Tenant shall become default in any monthly payments of rent or in any other payment required to be made by Tenant hereunder when due thereunder as herein provided and such failure default shall have continued from a period of continue for ten (10) Business Days days after receipt notice thereof in writing to Tenant.; or
(h) Tenant shall fail to contest the validity of any lien or claimed lien and give security to Landlord to insure payment thereof, or having commenced to contest the same and having given such security, shall fail to prosecute such contest with diligence, or shall fail to have the some released and satisfy any judgment rendered thereon, and such default continues for ten (10) days after notice thereof in writing to Tenant; or
(i) Tenant shall default in any of the other covenants and agreements herein contained to be kept, observed and performed by Tenant, and such default shall continue for thirty (30) days after notice thereof in writing to Tenant; or
(j) Tenant shall repeatedly be late in the RockGen Lessee and payment of rent or other charges required to be paid hereunder or shall repeatedly default in the Guarantor keeping, observing, or performing of written any other covenants or agreements herein contained to be kept,. observed or performed by Tenant (provided notice of such failure by payment or other defaults shall have been given to Tenant, but whether or not Tenant shall have timely cured any such payment or other defaults of which notice was given). Upon the RockGen Lessee and/or occurrence of any one or more of such events of default, Landlord may at its election terminate this Lease or terminate Tenant's right to possession only, without terminating the GuarantorLease. Upon termination of this Lease or of Tenant's right to possession, Landlord may re-enter the Leased Premises with or without process of law using such force as applicable;
may be necessary, and remove all persons, fixtures, and chattels therefrom and Landlord shall not be liable for any damages resultant therefrom. Upon termination of the Lease, or upon any termination of the Tenant's right to 46 possession without termination of the Lease, the Tenant shall surrender possession and vacate the Leased Premises immediately, and deliver possession thereof to the Landlord, and hereby grants to the Landlord the full and free right, without demand or notice of any kind to Tenant (c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownershipexcept as hereinabove expressly provided for), 3.6 (Guarantor merger) to enter into and upon the Leased Premises in such event with or 8.4 (assignment without process of Guaranty) of this Guaranty.
(d) law and to repossess the Guarantor shall fail Leased Premises as the Landlord's former estate and to perform expel or observe remove the Tenant and any covenant, obligation others who may be occupying or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) within the Leased Premises without being deemed in any material respectmanner guilty of trespass, which eviction, or forcible entry or detainer without incurring any liability for any damage resulting therefrom and without relinquishing the Landlord's rights to rent or any other right given to the Landlord hereunder or by operation of law. Upon termination of the Lease, Landlord shall continue unremedied for be entitled to recover as damages, all rent and other sums due and payable by Tenant on the date of termination, plus (1) with respect an amount equal to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement value of the RockGen Lessee under any rent and other sums provided herein to be paid by Tenant for the residue of the Operative Documentsstated term hereof, 30 days after receipt by less the Guarantor fair rental value of written notice thereof from the Owner ParticipantLeased Premises for the residue of the stated term (taking into account the time and expenses necessary to obtain a replacement tenant or tenants, including expenses hereinafter described relating to recovery of the Owner Lessorpremises, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy preparation for reletting and such condition is reasonably capable of being remedied within such additional 180-day periodfor reletting itself), and (2) with respect to the cost of performing any other obligationcovenants to be performed by Tenant. If the Landlord elects to terminate the Tenant's right to possession only, covenant without terminating the Lease, the Landlord may, at the Landlord's option enter into the Leased Premises, remove the Tenant's signs and other evidences of tenancy, and take and hold possession thereof as hereinabove provided, without such entry and possession terminating the Lease or agreement hereunderreleasing the Tenant, 30 days in whole or in part, from the Tenant's obligations to pay the rent hereunder for the full term or from any other of its obligations under this Lease. Landlord may, but shall be under no obligation so to do, relet all or any part of the Leased Premises for such rent and upon terms that shall be satisfactory to Landlord (including the right to rent the Leased Premises for a term greater than that remaining under the Lease term, and the right to relet the Leased Premises as a part of a larger area, and the right to change the character of use made of the Leased Premises). For the purpose of such reletting, Landlord may decorate or make any repairs, changes, alterations or additions in or to the Leased Premises that may be convenient. If Landlord does not relet the Leased Premises, Tenant shall pay to Landlord on demand damages equal to the amount of the rent, and other sums provided herein to be paid by Tenant for the remainder of the Lease term. If the Leased Premises are relet and a sufficient sum shall not be realized from such reletting after receipt paying all of the expenses of such decoration, repairs, changes, alternations, additions, the expenses of such reletting and the collection of the rent accruing therefrom including, but not by way of limitation, attorneys' fees and brokers' commissions, to satisfy the Guarantor rent herein provided to be paid for the remainder of written the Lease term. Tenant shall pay to Landlord on demand any deficiency and Tenant agrees that Landlord may file suit to recover any sums falling due under the terms of this Section from time to time. If Tenant shall default under subsection (1) hereof, and if such default cannot with due diligence be cured within a period of thirty (30) days, and if notice thereof;
(e) there thereof in writing shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof been given to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instrumentsTenant, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in if Tenant promptly commences to eliminate the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware cause of such default;
(f) , then Landlord shall not have the Guarantor right to declare said term ended by reason of such default or any Significant Subsidiary pursuant to or within repossess the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents Leased Premises without terminating the Lease so long as Tenant is proceeding diligently and with reasonable dispatch to the entry of an order for relief against it in an involuntary case;
(iii) consents take all steps and do all work required to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as cure such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidationdefault and does so cure such default, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if the curing of any default in such condition canmanner shall not be remedied within such 30-day period, then the period within which construed to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way limit or restrict the right of Landlord to declare the term ended or to repossess without terminating the Lease, and to enforce all of its right and remedies hereunder of for any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, other default no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingso cured.
Appears in 1 contract
Sources: Lease Amendment (Mfri Inc)
Defaults. The following events shall constitute an "Event events of default (“Events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):”) hereunder:
(a) The failure of the Guarantor Company to pay K▇▇▇▇▇▇ any sums due K▇▇▇▇▇▇ hereunder (taking into account any deferral or subordination of fees agreed to by the RockGen Lessee under the Facility Lease shall fail parties pursuant to make any payment with respect to Periodic Rent or the Termination Value Section 3 hereof) within ten (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (510) days after the same shall become due thereunder; orof written demand therefor by K▇▇▇▇▇▇.
(b) The failure of either party to perform, keep or fulfill in any material respect any of the Guarantor other covenants, undertakings, obligations or conditions set forth in this Agreement, and the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and continuance of such failure shall have continued from default for a period of ten thirty (1030) Business Days days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;said default.
(c) The Guarantor Upon the occurrence of any Event of Default, the non-defaulting party may give to the defaulting party notice of the non-defaulting party’s intention to terminate this Agreement specifying the cause therefor (“Default Notice”). If the defaulting party shall fail to comply with cure the Event of Default before the expiration of a period of sixty (60) days from the date of such Default Notice, the other party shall have the option, in its covenants set forth sole discretion, to terminate this Agreement at any time thereafter or seek such legal or equitable relief as it may deem appropriate in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guarantythe circumstances.
(d) Except as provided in this Section 7(d) below, until any Company debt to iStar shall have been paid and performed in full in cash and the Guarantor termination of all commitments by iStar to lend to the Company under the Credit Agreement, Consultant shall fail not take nor continue any action, nor exercise any rights, remedies or powers under the terms of this Agreement, nor exercise or continue to perform exercise any other right or observe remedy at law or equity that the Consultant might otherwise possess, to collect any covenantamount due and payable in respect of this Agreement. including, obligation without limitation, the acceleration of any payment due hereunder, the commencement of any action to enforce payment the filing of any petition in bankruptcy or agreement the taking advantage of any other insolvency law of any jurisdiction. Notwithstanding anything contained in this Agreement to be performed or observed by it under any Calpine Document (other than any covenantthe contrary, obligation or agreement referred to in clauses (a) or (b) the terms of this Section 7.17(d) shall not be amended, modified, supplemented or otherwise changed in any material respect, which shall continue unremedied for (1) with respect to manner without the Guarantor's guaranty ofprior written consent of iStar, and agreement with respect tono such amendment, modification, supplement or change shall be effective without such consent, Notwithstanding the foregoing, the Consultant may file a proof of claim in any nonmonetary obligationbankruptcy or similar proceeding instituted by another entity. If Consultant shall attempt to enforce, covenant collect or agreement realize upon any obligation of the RockGen Lessee under any Company in violation of the Operative Documentsterms hereof, 30 days after receipt iStar may, by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness virtue of the Guarantor terms hereof, restrain any such enforcement, collection or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or realization, either in its foreign currency equivalent) or more individually own name or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion name of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingCompany.
Appears in 1 contract
Sources: Consulting Agreement (Patriot Capital Funding, Inc.)
Defaults. The occurrence of any of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):Default hereunder:
(a) if any portion of the Guarantor or Note is not paid on the RockGen Lessee under date the Facility Lease same shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when become due and payable under payable, and such Facility Lease or this Guaranty within failure continues for five (5) days after the same shall become due thereunder; ordelivery of written notice thereof to Maker;
(b) the Guarantor or the RockGen Lessee if Maker shall fail to make pay or cause to be paid within twenty (20) days of notice and demand by Payee, any other amount instalment of any assessment against the Mortgaged Property for local improvements heretofore or hereafter laid, which assessment is or may become payable under any Operative Document after in annual or periodic installments and is or may become a lien on the same shall become Mortgaged Property, notwithstanding the fact that such instalment may not be due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by payable at the RockGen Lessee and the Guarantor of written notice time of such failure by the RockGen Lessee and/or the Guarantor, as applicablenotice and demand;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe if any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee Federal tax lien is filed against Maker or the Pass Through TrusteeMortgaged Property and the same is not discharged of record within thirty (30) days; provided, however, if Maker shall have the right to contest, at its own expense, by appropriate legal proceeding promptly initiated and conducted in good faith and with due diligence, the amount or validity of such condition cannot tax lien, provided neither the Mortgaged Property nor any part thereof or interest therein will in the opinion of Payee be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable in danger of being remedied within sold, forfeited, terminated, lost or cancelled and, provided further, Maker shall have either set aside adequate reserves or shall have furnished such additional 180-day periodsecurity as may be required in the proceeding, or as may be reasonably required by Payee;
(d) if w▇▇▇▇▇t the consent of Payee any part of the Mortgaged Property or any interest therein is in any manner further encumbered, sold, transferred or conveyed in violation of the terms and provisions of Section 12 of the Mortgage, or if any Improvement or the Equipment (2as defined in the Mortgage) with respect to any other obligation(except for normal replacement of the Equipment or the renovation and construction of the Improvements) is removed, covenant demolished or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereofmaterially altered;
(e) there shall have occurred either (i) a default by if without the Guarantor or consent of Payee any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor Leases (as defined in the Mortgage) are made, cancelled or any Restricted Subsidiary modified in violation of the Guarantor (other than terms and provisions of Section 8 of the Obligations) having an outstanding principal amount of $50,000,000 (Mortgage or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of if any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 Rents (or its foreign currency equivalent) individually or as defined in the aggregate and is not paid, Mortgage) are paid for a period of more than one (1) month in advance or such default is not cured or waived, within if any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such defaultRents are further assigned;
(f) if any representation or warranty of Maker, or of any Guarantor guaranteeing payment of the Guarantor Note or any Significant Subsidiary pursuant to portion thereof or within the meaning performance by Maker of any Bankruptcy Law:
(i) commences a voluntary caseof the terms of this Note made herein or in any such guaranty, or in any certificate, report, financial statement or other instrument furnished in connection with the making of this Note, the Mortgage, or any such guaranty, shall prove false or misleading in any material respect;
(iig) consents to the entry of if Maker or any Guarantor shall make an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or;
(vh) admits in writing its inability if a court of competent jurisdiction enters a decree or order for relief with respect to Maker or any Guarantor under Title 11 of the United States Code as now constituted or hereafter amended or under any other applicable Federal or state bankruptcy law or other similar law, or if such court enters a decree or order appointing a receiver, liquidator, assignee, trustee, sequestrator (or similar official) of Maker or any Guarantor, or of any substantial part of their respective properties, or if such court decrees or orders the winding up or liquidation of the affairs of Maker or any Guarantor and such order or decree is not vacated within sixty (60) days of entry;
(i) if Maker or any Guarantor files a petition or answer or consent seeking relief under Title 11 of the United States Code as now constituted or hereafter amended, or under any other applicable Federal or state bankruptcy law or other similar law, or if Maker or any Guarantor consents to the institution of proceedings thereunder or to the filing of any such petition or to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of Maker or any Guarantor, or of any substantial part of their respective properties, or if Maker or any Guarantor fails generally to pay its their respective debts as such debts become due; , or if Maker or any Guarantor takes any comparable action under in furtherance of any foreign laws relating to insolvencyaction described in this subparagraph;
(gj) an involuntary case if Maker or any other proceeding person shall be commenced against in default beyond any applicable grace or cure periods under the Guarantor Note or under any Significant Subsidiary seeking other mortgage, instrument or document evidencing, securing or guaranteeing payment of the Note, in whole or in part, or otherwise executed and delivered in connection with this Note, the Mortgage or the loan evidenced and secured thereby;
(k) if Maker shall be in default beyond applicable grace or cure periods under any mortgage covering any part of the Mortgaged Property whether superior or inferior in lien to the Mortgage;
(l) if the Mortgaged Property shall become subject (i) liquidationto any tax lien, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectthan a lien for local real estate taxes and assessments not due and payable, or (ii) to any mechanic's, materialman's or other lien and such lien shall remain undischarged or unbonded for thirty (30) days after actual or constructive notice of such lien is received by Maker;
(m) if any claim of priority to the appointment lien of the Mortgage, whether by title, lien or otherwise, is consented to by Maker or upheld by a court of competent jurisdiction;
(n) if Maker shall continue to be in default under any of the other terms, covenants or conditions of this Note or any of the other Loan Documents for five (5) days after notice from Payee in the case of any default which can be cured by the payment of a trusteesum of money or for thirty (30) days after notice from Payee in the case of any other default, receiverprovided that if such default cannot reasonably be cured within such thirty (30) day period and Maker shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, liquidatorsuch thirty (30) day period shall be extended for so long as it shall require Maker in the exercise of due diligence to cure such default, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or being agreed that no such Significant Subsidiary; and such involuntary case or other proceeding extension shall remain undismissed and unstayed be for a period in excess of 60 days;
one hundred eighty (h180) any representation or warranty made by the Guarantor herein days (unless a condition exists which is beyond Maker's control, in which case such period shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied extended for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if beyond such condition cannot be remedied within such 30180-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so as long as the Guarantor diligently pursues Mortgaged Property and the value thereof is in no way jeopardized or threatened by such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods further extension); or
(o) If Maker shall fail to comply with the Environmental Requirements set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure 44 of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingMortgage.
Appears in 1 contract
Defaults. The Tenant agrees that any one or more of the following events shall constitute an "Event be considered events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):default as said term is used herein:
(a) the Guarantor Tenant shall be adjudged an involuntary bankrupt, or the RockGen Lessee a decree or order approving, as properly filed, a petition or answer filed against Tenant asking reorganization of Tenant under the Facility Federal bankruptcy laws as now or hereafter amended, or under the laws of any state, shall be entered, and any such decree or judgment or order shall not have been vacated or set aside within sixty (60) days from the date of the entry or granting thereof; or
(b) Tenant shall file or admit the jurisdiction of the court and the material allegations contained in any petition in bankruptcy or any petition pursuant or purporting to be pursuant to the Federal bankruptcy laws as now or hereafter amended, or Tenant shall institute any proceeding or shall give its consent to the institution of any proceedings for any relief of Tenant under any bankruptcy or insolvency laws or any laws relating to the relief of debtors, readjustment or indebtedness, reorganization, arrangements, composition or extension; or
(c) The Lease Premises are levied upon by any revenue officer or similar officer; or
(d) A decree or order appointing a receiver of the property of Tenant shall fail to make be made and such decree or order shall not have been vacated or set aside within sixty (60) days from the date of entry or granting thereof; or
(e) Tenant shall abandon the Leased Premises during the Term hereof; or
(f) Tenant shall default in any payment with respect of rent or in any other payment required to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) be made by Tenant hereunder when due as herein provided, or shall default under Sections 6.0 or 6.1 hereof, and payable under any such Facility Lease or this Guaranty within default shall continue for five (5) days after the same shall become due thereundernotice thereof in writing to Tenant; or
(bg) the Guarantor or the RockGen Lessee Tenant shall fail to make contest the validity of any other amount payable under any Operative Document after lien or claimed lien caused by Tenant and give security to Landlord to assure payment thereof, or, having commenced to contest the same and having given such security, shall become due thereunder fail to prosecute such contest with diligence, or shall fail to have the same released and satisfy any judgment rendered thereon, and such failure shall have continued from a period of default continues for ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which in writing to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditorsTenant; or
(vh) admits Tenant shall default in keeping, observing or performing any of the other covenants agreements herein contained to be kept, observed and performed by Tenant, and such default shall continue for thirty (30) days after notice thereof in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingTenant.
Appears in 1 contract
Defaults. The following events shall constitute an "An Event of Default" hereunder Default shall occur if: (whether any such event i) the Company shall be voluntary or involuntary or come about or be effected by operation default in the payment of law or pursuant to or in compliance with any judgment, decree or order the principal of any court or any orderinstallment of interest on this Note, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value when and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after as the same shall become due thereunder; or
and payable, whether at maturity, on demand, on a date fixed for payment thereof, at a date fixed for prepayment, by acceleration or otherwise, (bii) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor Company shall fail to perform or observe any covenant, obligation or agreement contained herein or in any other Transaction Document and the Company has not remedied such default within thirty (30) days after notice of default has been given by the Investor to the Company, (iii) the Company and the Holder, or either one of them, fail, for any reason, to execute, deliver or consummate the "Stock Purchase Agreement" as defined in that certain Letter of Intent among the Company, ▇▇▇▇ and the Holder, dated May 2, 2001, by July 1, 2001, (iv) an Event of Default shall occur under the Note Purchase Agreement or any other Transaction Document and the Company has not remedied such default within thirty (30) days after notice of default has been given by the Investor to the Company, (v) an involuntary proceeding shall be performed commenced or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to an involuntary petition shall be filed in clauses a court of competent jurisdiction seeking (a) relief in respect of the Company or ▇▇▇▇, or of a substantial part of its property or assets, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal or state bankruptcy, insolvency, receivership or similar law, (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or ▇▇▇▇, or for all or substantially all a substantial part of its property;
property or assets, or (ivc) makes the winding up or liquidation of the Company or ▇▇▇▇, and such proceeding or petition shall continue undismissed for 60 days, or any order or decree approving or ordering any of the foregoing shall be entered or (vi) the Company or ▇▇▇▇ shall (a) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal or state bankruptcy, insolvency, receivership or similar law, (b) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described herein, (c) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (e) make a general assignment for the benefit of its creditors; or
, (vf) admits become unable, admit in writing its inability or fail generally to generally pay its debts as such debts they become due; or takes any comparable action under any foreign laws relating to insolvency;
, (g) an involuntary case or other proceeding shall be commenced against suspend the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part operation of its property business or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) take any representation or warranty made by action for the Guarantor herein shall prove to have been incorrect in purpose of effecting any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 1 contract
Sources: Note Purchase Agreement (Webb Interactive Services Inc)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) It shall be a default (“Default”) under this Note and each of the Guarantor other Loan Documents if (after giving effect to any applicable notice, grace or the RockGen Lessee cure periods) (i) any principal, interest or other amount of money due under this Note is not paid in full when due, regardless of how such amount may have become due; (ii) any covenant, agreement, condition, representation or warranty herein or in any other Loan Documents is not fully and timely performed, observed or kept; or (iii) there shall occur any default or event of default under the Facility Lease Deed of Trust or any other Loan Document. Upon the occurrence and during the continuation of a Default, Administrative Agent on behalf of the Lenders shall fail have the rights to make any payment with respect to Periodic Rent or declare the Termination Value (including unpaid principal balance and accrued but unpaid interest on this Note, and all other amounts due hereunder and under the Equity Portion of Termination Value and Debt Portion of Termination Value) when other Loan Documents, at once due and payable under (and upon such Facility Lease or this Guaranty within five (5) days after declaration, the same shall become be at once due thereunder; orand payable), to foreclose any liens and security interests securing payment hereof and to exercise any of its other rights, powers and remedies under this Note, under any other Loan Document, or at Law or in equity.
(b) All of the Guarantor or rights, remedies, powers and privileges (together, “Rights”) of Administrative Agent on behalf of the RockGen Lessee shall fail to make Lenders provided for in this Note and in any other amount Loan Document are cumulative of each other and of any and all other Rights at Law or in equity. The resort to any Right shall not prevent the concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall exhaust it, or preclude any other or further exercise thereof, and every Right may be exercised at any time and from time to time. No failure by Administrative Agent or Lenders to exercise, nor delay in exercising any Right, including but not limited to the right to accelerate the maturity of this Note, shall be construed as a waiver of any Default or as a waiver of any Right. Without limiting the generality of the foregoing provisions, the acceptance by Lender from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable under any Operative Document after at the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice time of such failure by the RockGen Lessee and/or the Guarantorpayment, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) constitute a default by waiver of or impair or extinguish the Guarantor right of Administrative Agent or Lenders to accelerate the maturity of this Note or to exercise any Restricted Subsidiary under other Right at the time or at any instrument subsequent time, or instruments under which there is or may be secured or evidenced nullify any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due exercise of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectRight, or (ii) constitute a waiver of the appointment requirement of punctual payment and performance or a trusteenovation in any respect.
(c) If any holder of this Note retains an attorney in connection with any Default or at maturity or to collect, receiverenforce or defend this Note or any other Loan Document in any lawsuit or in any probate, liquidatorreorganization, custodian bankruptcy, arbitration or other similar official proceeding, or if Borrower sues any holder in connection with respect to it this Note or any substantial part of its property other Loan Document and does not prevail, then Borrower agrees to pay to each such holder, in addition to principal, interest and any other sums owing to Lenders hereunder and under the other Loan Documents, all costs and expenses incurred by such holder in trying to collect this Note or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made such suit or misleading in any material respect when made because of proceeding, including, without limitation, attorneys’ fees and expenses, investigation costs and all court costs, whether or not suit is filed hereon, whether before or after the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to itMaturity Date, or performance of any obligationwhether in connection with bankruptcy, by the RockGen Lessee under any Operative Document to demand prompt payment thereofinsolvency or appeal, or performance thereof, by the Guarantor immediately upon whether collection is made against Borrower or any failure of the RockGen Lessee to pay guarantor or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of endorser or any cure other person primarily or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingsecondarily liable hereunder.
Appears in 1 contract
Sources: Loan Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
Defaults. The following events shall constitute an "Event of Default" hereunder 12.1 In the event that (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(ai) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic pay the Base Rent or the Termination Value (including the Equity Portion any amounts payable to Lessor as reimbursement of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease insurance premiums for insurance policies maintained by Lessor in accordance with Section 9.1 hereof, or this Guaranty any part thereof, within five (5) days after the same shall become its due thereunder; or
date, which failure is not cured within five (b5) the Guarantor days after receipt of notice of such failure from Lessor, or the RockGen (ii) Lessee shall fail to make pay any Amounts Due (other amount payable under any Operative Document after than Base Rent or such insurance premiums described in the preceding clause) within thirty (30) days of receipt of notice that the same shall become due thereunder and such failure shall have continued from a period of ten is due, or (10iii) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 any of the terms, covenants, conditions, or agreements herein contained or any of the rules and regulations now or hereafter established for the government of the Building, which failure is not cured within thirty (transfer 30) days after receipt of RockGen notice of such failure from Lessor, or (iv) Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform comply with any term provision, condition, or observe covenant of any covenant, obligation or other agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respectbetween Lessor and Lessee, which shall continue unremedied for failure is not cured within thirty (130) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof of such failure from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long (v) Lessee commits any default or breach as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to defined in any other obligationprovision of this lease, covenant which default or agreement hereunder, 30 breach is not cured within thirty (30) days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
breach from Lessor (f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition any default by Lessee described in clauses (iii), (iv) or (v) above cannot reasonably be remedied cured within such thirty (30-day period) days, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as Lessee shall promptly commence and thereafter diligently and in good faith pursue the Guarantor diligently pursues cure of such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above default to completion, Lessee shall not affect be deemed to be in default hereunder), then Lessor shall have the option, but not the obligation, to do any way one or more of the right hereunder following in addition to, and not in limitation of, any other remedy permitted by law, in equity or by this Lease:
12.1.1 Terminate this Lease, in which event Lessee shall surrender the Premises to Lessor immediately, and recover all sums owing and unpaid as of the date of termination and the unpaid rent. If Lessee refuses to surrender or deliver possession of the Premises to Lessor, Lessor may without notice enter into and upon the Premises, or any Beneficiary entitled portion thereof, and take possession of and repossess the Premises and expel and remove the Lessee and its effects from the Premises, without being liable for prosecution and damages therefore, and without prejudice to a any other remedy Lessor may have at law or equity;
12.1.2 Without terminating this Lease, retake possession of the Premises and rent the Premises, or any part thereof, for such term or terms and for such rent and upon such conditions as Lessor may, in its sole discretion, think best, making such changes, improvements, alterations, and repairs to the Premises as may be required. All rent received by Lessor from any reletting shall be applied first to the payment of any indebtedness other than rent due hereunder from Lessee; second, to the payment of any reasonable costs and expenses of the reletting, including but not limited to brokerage fees, attorneys' fees and costs of such changes, improvements, alterations, and repairs; third, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Lessor and applied in payment of future rent or damage as they may become due and payable hereunder. If the rent received from the reletting during the Lease Term is at any time insufficient to cover the costs, expenses, and payments enumerated above, Lessee shall pay any deficiency to Lessor, as often as it shall arise, on demand;
12.1.3 Correct or cure the default and recover any amount payable to itexpended in so doing, together with interest thereon until paid;
12.1.4 Recover any and all costs incurred by Lessor resulting directly, indirectly, approximately, or performance of any obligationremotely from the default, by the RockGen Lessee under any Operative Document including but not limited to demand prompt payment thereofreasonable attorneys, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before fees actually incurred and calculated at such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingattorneys' standard hourly rates.
Appears in 1 contract
Sources: Lease (Melita International Corp)
Defaults. The following events shall constitute an "Event events of Defaultdefault" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation under this Contract:
A. The failure of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) either the Guarantor Management Company or the RockGen Lessee under the Facility Lease shall fail Association (but not individual Campsite Owners) to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement required to be performed or observed by it under any Calpine Document made in accordance with the terms hereof within thirty (other than any covenant, obligation or agreement referred to in clauses (a30) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor such party of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if that such condition canpayment has not be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditorsmade; or
B. The failure of either the Management Company or the Association (vbut not, individual Campsite Owners) admits in writing its inability to generally pay its debts as such debts become due; perform, keep or takes fulfill any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code other covenants, undertakings, obligations or any bankruptcyconditions set forth in the Contract, insolvency or other similar law now or hereafter in effect, or (ii) and the appointment continuance of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed default for a period of 60 days;thirty (30) days after written notice of said failure.
C. Upon the occurrence of any such events of default, the non defaulting party may give to the other party (hthe "Noticed Party") any representation or warranty made by notice of such default - (the Guarantor herein "Notice") and notice that this Contract shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because terminate upon the expiration of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 thirty (30) days from the date of such notice unless, prior to the expiration of such period, such default has been cured or, in the event of a default which is not susceptible of being cured within such thirty (30) days, unless the defaulting party shall promptly commence to cure the default and must thereafter diligently pursue such efforts to completion.
D. The Notice shall state the specific reason(s) for the default and the specific action(s) required to cure the Noticed Party's default. If the Noticed Party does not agree with all or portions of the Notice, within fifteen (15) days after receipt by thereof the Guarantor of Noticed Party shall give written notice thereofto the non-defaulting party of such disagreement, which notice shall specifically identify the areas of disagreement with the Notice and that the Noticed Party requests a determination thereof by arbitration; provided, howeveras to the portion of the non- defaulting party's notice that the Noticed Party agrees with, the Noticed Party shall proceed to cure as provided above. If the arbitrator determines that if any noticed default denied by the Noticed Party exists, the arbitrator by written opinion shall identify such condition cannot be remedied within such 30-day perioddefault, then the action(s) required to cure the default and the specific period within of time, which the Noticed Party shall have to remedy such condition shall be extended up to an additional 60 dayscure the default. If the Noticed Party complies with the decision of the arbitrator, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above this Contract shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingterminate.
Appears in 1 contract
Sources: Management Contract
Defaults. The (a) Any of the following events shall constitute an "Event of Default" hereunder ":
(whether i) The Company defaults in the payment of (A) any such event shall be voluntary or involuntary or come about or be effected by operation part of law or pursuant to or in compliance with any judgment, decree or order the principal of any court or any orderNote, rule or regulation of any Governmental Entity):
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
and payable, whether at maturity or at a date fixed for prepayment or by acceleration or otherwise, or (bB) the Guarantor or the RockGen Lessee shall fail to make interest on any other amount payable under any Operative Document after Note, when the same shall become due thereunder and payable, and such failure default in the payment of interest shall have continued from a period of ten for five (105) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through TrusteeDays; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;or
(ii) consents the Company defaults in the performance of any other agreement or covenant contained in the Purchase Agreements, and such default shall not have been remedied within thirty (30) days after written notice thereof shall have been given to the entry Company by any holder of an order for relief against it in an involuntary case;this Note (the Company to give forthwith to all other holders of this Note at the time outstanding written notice of the receipt of such notice, specifying the default referred to therein); or
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any material representation or warranty made by the Guarantor herein shall prove Company herein, in the Purchase Agreements or in any certificate delivered by the Company pursuant hereto proves to have been incorrect in any material respect when made made; or
(iv) the Company or misleading any Subsidiary shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts; or a receiver or trustee is appointed for the Company or any material respect when made because Subsidiary or for substantially all of its assets and, if appointed without its consent, such appointment is not discharged or stayed within sixty (60) days; or proceedings under any law relating to bankruptcy, insolvency or the reorganization or relief of debtors are instituted by or against the Company or any Subsidiary, and, if contested by it, are not dismissed or stayed within sixty (60) days; or any writ of attachment or execution or any similar process is issued or levied against the Company or any Subsidiary or any of its property and is not released, stayed, bonded or vacated within sixty (60) days after its issue or levy; or the Company or any Subsidiary takes corporate or limited liability company action in furtherance of any of the omission foregoing.
(b) If an Event of Default occurs pursuant to state a material fact any of clauses (i) through (iii) of Section 5(a) of this Note then and in each such incorrect event and with the concurrence of holders of 67% of the Notes any holder of this Note (unless all Events of Default shall theretofore have been waived or misleading representation is and continues remedied) at its option, by written notice or notices to the Company, may declare this Note to be material due and unremedied payable. If an Event of Default occurs pursuant to clause (iv) of Section 5(a) of this Note, this Note shall automatically and without further action become due and payable. Upon any such declaration (or as to such clause (iv) upon its occurrence) this Note shall forthwith immediately mature and become due and payable. However, the foregoing acceleration rights are subject to the following:
(i) if, at any time after the principal of this Note shall so become due and payable and prior to the date of maturity stated in this Note, all interest on this Note (with interest at the rate specified in this Note on any overdue principal and, if applicable, on any overdue interest) shall be paid to the holder of this Note by or for a period the account of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day periodCompany, then the period Note holder, by written notice or notices to the Company, may waive such Event of Default and its consequences and rescind or annul any such declaration, but no such waiver shall extend to or affect any subsequent Event of Default or impair any right or remedy resulting therefrom;
(ii) if any holder or holders of Notes which, at the time, holds or hold at least sixty-seven percent (67%) in aggregate principal amount of the Notes then outstanding exercises the above rights of acceleration, then the Company shall notify each other holder of Notes of the fact of such acceleration and each other holder shall, without limiting any other rights hereunder, (A) have the right for thirty (30) days after such notice from the Company to accelerate its own Notes based on the Event or Events of Default on which such acceleration was based (regardless of whether such Event or Events of Default are then continuing), unless at the time there are no outstanding Events of Default and any acceleration of any Notes has been rescinded or (B) be deemed automatically (without any action by such holder) to have accelerated its Notes if such holder has not received such notice of an acceleration from the Company within ten (10) business days after such acceleration; provided that any such automatic acceleration may take place regardless of whether the Event or Events of Default on which the initial acceleration was based are then continuing but such automatic acceleration shall not take place if at the time any and all accelerations of any Notes have been rescinded or annulled pursuant to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and subparagraph (bi) above or otherwise;
(iii) any holder may at any time rescind and annul any acceleration with respect to its own Notes; and
(iv) if any holder of a Note shall not affect in give any way the right hereunder of notice or take any Beneficiary entitled other action with respect to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease claimed Event of Default); provided, howeverthe Company, notwithstanding forthwith upon receipt of such notice or obtaining knowledge of such other action, will give written notice thereof to all other holders of the foregoingNotes then outstanding, no Lease describing such notice or other action and the nature of the claimed Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingDefault.
Appears in 1 contract
Defaults. The following events shall constitute an "Event of Default" hereunder In the event that (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(ai) the Guarantor or the RockGen Lessee under the Facility Lease Tenant shall fail to make pay when and as due any payment with respect to Periodic of rent or of Additional Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under by Tenant hereunder, or (ii) Tenant shall violate any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantorother term, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership)provision, 3.6 (Guarantor merger) covenant or 8.4 (assignment of Guaranty) condition of this Guaranty.
(d) the Guarantor Lease or shall neglect or fail to perform or to observe or comply with any covenantof the other terms, obligation conditions or agreement covenants herein contained on Tenant's part to be performed or observed by it under any Calpine Document and Tenant shall fail to remedy the same within twenty (other than any covenant, obligation or agreement referred to in clauses (a20) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of Landlord shall have sent Tenant written notice thereof from the Owner Participantspecifying such violation, the Owner Lessorneglect or failure, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) this Lease or the winding-up Demised Premises or liquidation any part thereof shall be taken upon execution or by other process of law directed against Tenant, or shall be taken upon or subject to any attachment at the instance of any creditor of or claimant against Tenant, and said attachment shall not be discharged or disposed of within thirty (30) days after the levy thereof; of (iv) Tenant shall abandon, vacate or desert the Demised Premises, or fail to continuously operate the Demised Premises for the Permitted Use specified in Article Fifth hereof; then in any one or more of such events, Landlord shall have the right, at its option, exercisable by sending written notice thereof to Tenant, to terminate this Lease, in which event Tenant agrees to immediately surrender to Landlord possession of the Guarantor Demised Premises, without any notice to quit or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed demand for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because possession of the omission Demised Premises whatsoever, all statutory and other notice to state quit or of intention to re-enter the same being hereby expressly waived by Tenant, and Tenant hereby grants Landlord full and free entrance to, into and upon the Demised Premises or any part thereof, to take possession thereof with or without process of law and to expel and remove Tenant or any other person occupying the Demised Premises or any part hereof, and Landlord may repossess itself of the same as if its former estate, but such entry shall not constitute trespass or forcible entry or detainer, nor shall it cause a material fact and such incorrect forfeiture of rents due by virtue hereof nor waiver of any covenant, agreements or misleading representation is and continues promises in this Lease contained to be material performed by Tenant. If this Lease shall be terminated as aforesaid, the Demised Premises, or any part thereof, may be re-let by Landlord for the account and unremedied benefit of Tenant, for such rent and upon such terms and to such person or persons and for such period or periods as may seem fit to Landlord, and if a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cansufficient sum shall not be remedied within received form such 30-day periodreletting to satisfy the rent reserved in this Lease, then after paying the period within which expense of reletting and collection, including reasonable commissions to remedy agents and reasonable attorneys' fees, and any court costs, Tenant agrees to pay and satisfy any and all such condition shall be extended up to an additional 60 days, so long as deficiencies; but the Guarantor diligently pursues such remedy and such condition is reasonably capable acceptance of being remedied within such additional 60-day period. The grace periods set forth a lessee by Landlord in Section 7.1(a) and (b) above place of Tenant shall not affect in any way operate as a release of Tenant from the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligationcovenant, promise or agreement herein contained, and the performance of any substitute tenant by the RockGen Lessee under any Operative Document to demand prompt payment thereofof rent, or performance thereofotherwise, by the Guarantor immediately upon any failure shall constitute only satisfaction pro-tanto of the RockGen Lessee obligations of Tenant arising --------- hereunder. Any damages or deficiencies, at the option of Landlord, may be recovered by Landlord in separate actions, from time to time, as Tenant's obligations to pay would have accrued if the term had continued, or perform from time to time as said damages or deficiencies shall have been made more easily ascertainable by relettings of the same when it has become due (andDemised Premises, or any such action by Landlord may, at the option of Landlord, be deferred until the expiration of the term hereof. Notwithstanding anything to the contrary contained in this Lease, to the extent not expressly prohibited by applicable law, in the event of any default of Tenant under this Lease, Landlord at its sole option and discretion may terminate this Lease and/or Tenant's right to possession of the premises, and may accelerate and declare that all rentals and other amounts reserved for the avoidance entire remainder of doubtthe term hereof shall be immediately due and payable, without regard in which event Tenant agrees to pay same on demand. If and to the existence of any cure or grace period before such failure extent Tenant makes the payments demanded by Landlord pursuant to the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding preceding sentence (the foregoing, no Lease Event of Default under Section 16(m"accelerated rent") and no remedies under provided such payments are free of challenge by and are not recovered by Tenant's creditors, trustee or receiver in any creditor proceedings, then it is agreed that Landlord will refund to Tenant (to the Facility Lease may be exercised until extent only of said Accelerated Rent) any actual Net Re-Letting Proceeds (defined below) thereafter received by Landlord during the remainder of the stated term of this Lease. The phrase Net Re-Letting Proceeds as used herein shall mean the total amount of rent and other consideration paid by any Replacement Tenants, less all Costs of Re-Letting, during a Calpine Guaranty Event given period of Default has occurred time. "Costs of Re-Letting" shall include without limitation, all reasonable costs and is continuing.expenses incurred by Landlord for any repairs, maintenance, changes, alterations and improvements to the Premises, brokerage commissions, advertising costs, attorneys' fees, any customary free rent periods or credits, tenant improvement allowances, take-over lease obligations and other customary, necessary or appropriate economic incentives required to enter leases with Replacement Tenants, and costs of collecting rend from Replacement Tenants. The
Appears in 1 contract
Defaults. The occurrence of any one or more of the following events shall constitute an "“Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):”:
(a) the Guarantor or the RockGen Lessee under the Facility Lease Borrower shall fail to make pay (i) any interest due on any Loan, or any other amount payable hereunder (other than a principal payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Valueon any Loan) when due and payable under such Facility Lease or this Guaranty within by five (5) days after the same shall become becomes due; or (ii) any principal amount due thereunder; oron any Loan when due;
(b) Borrower shall default in the Guarantor performance or the RockGen Lessee shall fail to make observance of any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period agreement, covenant, condition, provision or term contained in Article VI or Section 7.01 or 7.06 of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicablethis Agreement;
(c) The Guarantor Any Loan Party shall fail default in the performance or observance of any of the other agreements, covenants, conditions, provisions or terms in this Agreement or any Loan Document and such default continues for a period of thirty (30) days after written notice thereof is given to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.Borrower by Lender;
(d) Any representation or warranty made by any Loan Party herein or in any other Loan Document or any certificate delivered pursuant hereto, or any financial statement delivered to Lender hereunder, shall prove to have been false in any material respect as of the Guarantor time when made or given;
(e) Any Loan Party shall fail to perform pay as and when due and payable (whether at maturity, by acceleration or observe otherwise) all or any covenantpart of the principal of or interest on any Indebtedness of or assumed by it, obligation in an amount which is, individually or agreement to in the aggregate with all other amounts described in this clause (e), in excess of the Threshold Amount, and such default shall not be performed cured within the period or observed by it periods of grace, if any, specified in the instruments governing such obligations; or default shall occur under any Calpine Document evidence of, or any indenture, lease, agreement or other instrument governing such obligations and such obligations are, individually or in the aggregate with all other amounts described in this clause (other than any covenante), obligation or agreement referred to in clauses (a) or (b) excess of this Section 7.1) in any material respectthe Threshold Amount, which and such default shall continue unremedied for (1) with respect a period of time sufficient to permit the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement acceleration of the RockGen Lessee under maturity of any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trusteesuch Indebtedness; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition that no default shall be extended up deemed to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
have occurred under this clause (e) there shall in connection with obligations which are being contested in good faith by appropriate proceedings and for which adequate reserves have occurred either (i) a default by been set aside in accordance with GAAP, provided that the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that party to such dispute has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturitynot, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paidentitled to, or such default is not cured or waived, within place any grace period applicable thereto, unless such Indebtedness is discharged within 30 days Lien on any property of the Guarantor Borrower or a Restricted any Subsidiary becoming aware of in connection with such defaultdisputed obligation, other than Permitted Liens;
(f) the Guarantor A final judgment which, together with all other outstanding final judgments against any Loan Party and its Subsidiaries, or any Significant Subsidiary pursuant to of them, exceeds the Threshold Amount and is not either covered by insurance provided by a financially responsible insurance carrier or satisfied, bonded, stayed or insured within 60 days from the meaning date of any Bankruptcy Law:entry thereof;
(g) Any Loan Party shall: (i) commences a voluntary case;
become insolvent; or (ii) consents be unable, or admit in writing its inability, to the entry of an order for relief against it in an involuntary case;
pay its debts as they mature; or (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes make a general assignment for the benefit of creditors or to an agent authorized to liquidate any substantial amount of its property; or (iv) become the subject of an “order for relief” within the meaning of the United States Bankruptcy Code; or (v) become the subject of a creditor’s petition for liquidation, reorganization or to effect a plan or other arrangement with creditors; or (vi) apply to a court for the appointment of a custodian or receiver for any of its assets; or (vii) have a custodian or receiver appointed for any of its assets (with or without its consent); or (viii) have any of its assets garnished, seized or forfeited, or threatened with garnishment, seizure or forfeiture; (ix) otherwise become the subject of any insolvency proceedings, or propose or enter into any formal or informal composition or arrangement with its creditors; and, in the case of any involuntary proceeding, petition, garnishment, seizure or forfeiture of the type listed in subclauses (v), (viii) or (ix) above, the same shall continue undismissed or unstayed for sixty (60) days.
(h) This Agreement, or any Loan Document shall, at any time after their respective execution and delivery, and for any reason, cease to be in full force and effect or be declared null and void, or be revoked or terminated, or the validity or enforceability thereof or hereof shall be contested by any Loan Party or any shareholder of any Loan Party, or any Loan Party shall deny that it has any or further liability or obligation thereunder or hereunder, as the case may be;
(i) Any Reportable Event, which Lender determines in good faith to constitute grounds for the termination of any Plan by the Pension Benefit Guaranty Corporation or for the appointment by the appropriate United States District Court of a trustee to administer any Plan, shall have occurred, or any Plan shall be terminated within the meaning of Title IV of ERISA, or a trustee shall be appointed by the appropriate United States District Court to administer any Plan, or the Pension Benefit Guaranty Corporation shall institute proceedings to terminate any Plan or to appoint a trustee to administer any Plan, and in case of any event described in the preceding provisions of this subsection (i) Lender determines in good faith that the aggregate amount of the liability of Borrower and its Subsidiaries to the Pension Benefit Guaranty Corporation under ERISA shall exceed the Threshold Amount and such liability is not covered, for the benefit of Borrower, by insurance; or any Loan Party or any Subsidiary shall become a member of a Multiemployer Plan; or
(vj) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding Any Change of Control shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingoccur.
Appears in 1 contract
Sources: Credit Agreement (Servicesource International, Inc.)
Defaults. The following are events shall constitute of default under this Note (each, an "“Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity”):
(a) the Guarantor Borrower fails to pay any principal, interest, fees, charges, or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) other amount when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunderhereunder; or
(b) Borrower fails to deliver any Lender Conversion Shares in accordance with the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
terms hereof; (c) The Guarantor shall fail Borrower fails to comply deliver any Redemption Conversion Shares (as defined below) in accordance with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
the terms hereof; (d) the Guarantor a receiver, trustee or other similar official shall fail to perform be appointed over Borrower or observe any covenant, obligation a material part of its assets and such appointment shall remain uncontested for twenty (20) days or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied dismissed or discharged within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 sixty (60) days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
; (e) there shall have occurred either (i) a default by the Guarantor Borrower becomes insolvent or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof generally fails to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paidpay, or such default is not cured admits in writing its inability to pay, its debts as they become due, subject to applicable grace periods, if any, or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
waivers; (f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) Borrower makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other Borrower files a petition for relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now (domestic or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiaryforeign); and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) an involuntary bankruptcy proceeding is commenced or filed against Borrower; (i) Borrower or any representation pledgor, trustor, or warranty made by the Guarantor guarantor of this Note defaults or otherwise fails to observe or perform (after giving effect to any grace period) any covenant, obligation, condition or agreement of Borrower or such pledgor, trustor, or guarantor contained herein shall prove to have been incorrect or in any material respect when other Transaction Document (as defined in the Purchase Agreement), other than those specifically set forth in this Section 4.1; (j) any representation, warranty or other statement made or furnished by or on behalf of Borrower or any pledgor, trustor, or guarantor of this Note to Lender herein, in any Transaction Document, or otherwise in connection with the issuance of this Note is false, incorrect, incomplete or misleading in any material respect when made because or furnished; (k) the occurrence of a Fundamental Transaction without Lender’s prior written consent unless either (1) 100% of the omission Outstanding Balance due on this Note is paid in full in connection with such Fundamental Transaction or (2) shares of the Borrower’s common stock are still traded on the NYSE, Nasdaq, OTCQX or OTCQB following consummation of the such Fundamental Transaction; (l) Borrower fails to state maintain the Share Reserve as required under the Purchase Agreement; (m) Borrower effectuates a material fact reverse split of its Common Stock without twenty (20) Trading Days prior written notice to Lender other than in connection with a Fundamental Transaction; (n) any money judgment, writ or similar process is entered or filed against Borrower or any subsidiary of Borrower or any of its property or other assets for more than $1,000,000.00, and such incorrect shall remain unvacated, unbonded or misleading representation is and continues to be material and unremedied unstayed for a period of 30 twenty (20) calendar days unless otherwise consented to by Lender; or (o) Borrower, any affiliate of Borrower, or any pledgor, trustor, or guarantor of this Note breaches any material covenant or other term or condition contained in any Other Agreements (after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which giving effect to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The any grace periods set forth in Section 7.1(a) and (b) above shall not affect in therein or any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Defaultwaivers); provided, however, notwithstanding . Notwithstanding the foregoing, no Lease the occurrence of any event specified in Section 4.1(i) – (o) shall not be considered an Event of Default under Section 16(mhereunder if such event is cured within fifteen (15) and no remedies under days of the Facility Lease may be exercised until a Calpine Guaranty Event occurrence of Default has occurred and is continuingsuch event.
Appears in 1 contract
Defaults. The following events shall constitute an "Event of A default (“Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):”) means the occurence of:
(a) any failure by the Guarantor Servicer to remit to the Company or deposit in the Collection Account, the Escrow Accounts, any accounts created under the Custodial and Paying Agency Agreement or any Other Accounts any amount required to be so remitted or deposited under the terms of (i) this Agreement or (ii) the Custodial and Paying Agency Agreement or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunderLLC Operating Agreement; or
(b) any Insolvency Event (without any cure period other than as may be provided for in the Guarantor definition of Insolvency Event) (i) with respect to the Servicer or any of its Related Parties, or (ii) with respect to any Subservicer or any of its Related Parties; provided, that any such Insolvency Event under this clause (ii) (that is not otherwise an Insolvency Event under clause (i) hereof) shall not be an Event of Default hereunder (but shall in all events be a default under the RockGen Lessee applicable Subservicing Agreement) so long as the Servicer shall fail to make any other amount payable under any Operative Document have fully replaced such affected Subservicer within thirty (30) days after the same shall become due thereunder and occurrence of such Insolvency Event; or
(c) any failure shall have continued from by the Servicer to duly perform its obligations in (i) Section 5.2(e), which failure continues unremedied for a period of ten five (105) Business Days days, or such other period as the Manager and the Servicer agree, after receipt the date on which written notice of such failure, requiring the same to be remedied, shall have been given by the RockGen Lessee Manager to the Servicer, or (ii) Section 5.2(f) or Section 5.2(g)5.2(g), which failure continues unremedied for a period of twenty-five (25) days, or such other period as the Manager and the Guarantor Servicer agree, after the date on which written notice of such failure, requiring the same to be remedied, shall have been given by the Manager to the Servicer; or
(d) any failure by the Servicer at any time (i) to comply with its obligation to be a Qualified Servicer and to renew or maintain any permit or license necessary to carry out its responsibilities under this Agreement in compliance with Law, or (ii) to have an Acceptable Rating or (iii) to cause each Subservicer to meet the applicable characteristics of a Qualified Servicer as required under Section 4.1 and to renew or maintain any permit or license necessary to carry out its responsibilities under any Subservicing Agreement, which, in the case of either (i), (ii) or (iii), continues unremedied for a period of thirty (30) days after the date on which written notice of such failure requiring the same to be remedied shall have been given by the RockGen Lessee and/or Manager or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect Initial Member to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through TrusteeServicer; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;or
(e) there shall have occurred either (i) any failure by the Servicer to cause any Subservicer to comply with the terms of its Subservicing Agreement with the Servicer, the occurrence of a default or material breach by any Subservicer under its Subservicing Agreement or the failure by the Guarantor or Servicer to replace any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of Subservicer upon the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due occurrence of any portion of such event in accordance with the principal terms governing material breach or default under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;Subservicing Agreement; or
(f) any other failure (other than those specified in any of Section 7.1(a) through (e)) by the Guarantor Servicer to duly observe or perform any Significant Subsidiary pursuant to other covenants or within agreements on the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 part of the Bankruptcy Code Servicer contained in this Agreement or to perform any bankruptcyServicing Obligation in compliance with the Servicing Standard, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and failure continues to be material and unremedied for a period of 30 days thirty (30) days, or such other period as the Manager, with the consent of the Initial Member, and the Servicer agree, after receipt the date on which written notice of such failure shall have been given by the Guarantor of written notice thereofManager or the Initial Member to the Servicer; provided, however, that if such condition in the case of a failure that cannot be remedied cured within thirty (30) days (or such 30-day periodother period as the Manager, then with the consent of the Initial Member, and the Servicer agree) with the exercise of reasonable diligence, the cure period within which to remedy such condition shall be extended up for an additional thirty (30) days if the Servicer can demonstrate to the reasonable satisfaction of the Manager and the Initial Member that the Servicer is diligently pursuing remedial action; and provided, further, that, with respect to any such failure failure under this Section 7.1(f) that relates exclusively to obligations included in any applicable Schedule hereto that can be amended or otherwise modified without the consent of the Initial Member, then no such consent of the Initial Member shall be required with respect to an additional 60 days, applicable cure period hereunder so long as the Guarantor diligently pursues such remedy and such condition failure hereunder is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to itnot, or performance of any obligationwould not result in, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such a failure by the RockGen Lessee becomes a Lease Manager to comply with its obligations under the LLC Operating Agreement and the other Ancillary Documents; or
(g) the occurrence of any “Event of Default),” as defined in the LLC Operating Agreement; provided, however, notwithstanding or
(h) receipt by the foregoing, no Lease Manager or the Servicer of notice from the Purchase Money Notes Guarantor that an “Event of Default under Section 16(m) Default” as defined in the Reimbursement, Security and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default Agreement has occurred and is continuing; or
(i) the occurrence of any Restricted Servicer Change of Control.
Appears in 1 contract
Sources: Servicing Agreement
Defaults. The following events shall constitute an "Event Events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):":
(a) the Guarantor or the RockGen Lessee Any Event of Default under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunderother Debenture; or
(b) The suspension from trading or failure of the Guarantor Common Stock to be listed on NASDAQ or the RockGen Lessee NYSE for more than an aggregate of ten (10) trading days in any 365-day period; or
(c) Any money judgment (including any arbitration award, but only if reduced to a judgment), writ or warrant of attachment, or similar process in excess of Two Hundred and Fifty Thousand Dollars ($250,000) in the aggregate, net of any applicable insurance coverage, shall fail to make be entered or filed against the Company, its subsidiaries or any of their properties or other amount payable under any Operative Document assets and which shall remain unpaid, unvacated, unbonded and unstayed for a period of seventy-five (75) days; or
(d) The Company shall default in the payment when due of (i) interest on this Debenture, and such default shall continue for thirty (30) calendar days after the same due date thereof, or (ii) the Outstanding Principal Amount of this Debenture; or
(e) Any of the representations or warranties made by the Company herein, in the Securities Purchase Agreement, the Warrants or the Registration Rights Agreement shall become due thereunder be untrue in any material respect at the time made and such failure condition (to the extent capable of being cured) shall have continued from continue uncured for a period of ten (10) Business Days after receipt by notice from the RockGen Lessee and the Guarantor of written notice Holder of such failure by condition; and such breach of representations and warranties, singly or in the RockGen Lessee and/or aggregate, would have a Material Adverse Effect or materially impair the Guarantor, as applicable;ability of the Company to perform or satisfy its obligations to the Holder pursuant to the Transaction Documents; or
(cf) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor Company shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, material covenant or agreement of in the RockGen Lessee under Securities Purchase Agreement, the Warrants, the Registration Rights Agreement or this Debenture (as any of the Operative Documentsforegoing may be amended), 30 days after receipt by the Guarantor of written notice thereof from the Owner Participantincluding, without limitation, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which failure to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy honor any Conversion Notice and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instrumentsdeliver shares pursuant thereto, and such unpaid portion exceeds $50,000,000 failure shall continue uncured for a period of ten (or its foreign currency equivalent10) individually or in Business Days after notice from the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware Holder of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditorsfailure; or
(vg) admits The Company shall (i) become insolvent; (ii) admit in writing its inability to generally pay its debts generally as such debts become duethey mature; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuing.
Appears in 1 contract
Defaults. The occurrence of any of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity)::
(a) Any representation or warranty made by the Guarantor Company, the Issuer or the RockGen Lessee Servicer hereunder or under the Facility Lease Transaction Documents, or in any certificate furnished hereunder or under the Transaction Documents, shall prove to be untrue or incomplete in any material respect;
(i) The Company or the Issuer shall fail to make pay when due any payment with respect to Periodic Rent amount payable by the Company or the Termination Value Issuer hereunder or (including ii) a legislative body has enacted any law that declares or a court of competent jurisdiction shall find or rule that any of the Equity Portion of Termination Value Transaction Documents are not valid and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after binding on the same shall become due thereunder; or
(b) Company, the Guarantor Servicer or the RockGen Lessee shall fail Issuer to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from which it is a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicableparty;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 occurrence and continuance of a "Servicer Event of Default" under the Servicing Agreement (transfer of RockGen Lessee ownershipas defined therein), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.;
(d) Any failure on the Guarantor part of the Company, the Issuer or the Servicer duly to observe or perform in any material respect any other of the covenants or agreements on the part of the Company, the Issuer or the Servicer contained in this Agreement or in any other Transaction Document which continues unremedied for a period of 45 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Company, the Issuer or the Servicer, as the case may be, by the Insurer (with a copy to Indenture Trustee) or by the Indenture Trustee (with a copy to the Insurer);
(e) Any material party thereto shall breach any material representation or warranty or fail to perform or observe any covenant, obligation material covenant or agreement to be performed or observed by it under contained in any Calpine Transaction Document (other than any covenant, obligation or agreement referred to in clauses except for the obligations described under paragraph (a) or (bc) of this Section 7.1) in any material respectabove), which and such failure shall continue unremedied for (1) with respect a period of 45 days after written notice given to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant Company or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trusteesuch other party; provided, howeverprovided that, if such condition failure shall be of a nature that it cannot be remedied cured within 45 days, such failure shall not constitute an Event of Default hereunder if within such 3045-day periodperiod the Company or such other party shall have given notice to the Insurer of corrective action it proposes to take, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition corrective action is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt agreed in writing by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness Insurer to be due satisfactory and payable prior to its Stated Maturity, unless the Company or such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any other party shall thereafter pursue such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or corrective action diligently until such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such defaultcured;
(f) A decree or order of a court or agency or supervisory authority having jurisdiction in the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it premises in an involuntary case;
(iii) consents to case under any present or future federal or state bankruptcy, insolvency or similar law or the appointment of a Custodian of it conservator or for all receiver or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian liquidator or other similar official with respect to it in any insolvency, readjustment of debt, marshalling of assets and liabilities or any substantial part of its property similar proceedings, or (iii) for the winding-up or liquidation of its affairs, shall have been entered against the Guarantor Company, the Issuer or such Significant Subsidiary; the Servicer and such involuntary case decree or other proceeding order shall remain undismissed and have remained in force undischarged or unstayed for a period of 60 90 consecutive days;
(g) The Company, the Issuer or the Servicer shall consent to the appointment of a conservator or receiver or liquidator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Company, the Issuer or the Servicer or of or relating to all or substantially all of the property of either; or
(h) The Company, the Issuer or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of or otherwise voluntarily commence a case or proceeding under any representation applicable bankruptcy, insolvency, reorganization or warranty made by other similar statute, make an assignment for the Guarantor herein shall prove to have been incorrect in any material respect when made benefit of its creditors or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a voluntarily suspend payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingits obligations.
Appears in 1 contract
Defaults. The If any of the following events ("Defaults") shall constitute occur:
(A) Borrower fails to pay (i) any of its Liabilities (other than interest or fees) when such Liabilities are due or are declared due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) or (ii) any of its Liabilities consisting of interest or fees within two days of the date such Liabilities are due or declared due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise);
(B) Borrower or any other Credit Party (i) fails or neglects to perform, keep or observe any of its covenants, conditions or agreements contained in any of the subsections of this Agreement or any of the other Financing Agreements other than subsection 7.3 or 7.4 of this Agreement or paragraphs 3.C or 3.D of the Holdings Guaranty or (ii) fails or neglects to perform, keep or observe any of the covenants, conditions or agreements contained in subsection 7.3 or 7.4 of this Agreement or paragraphs 3.C or 3.D of the Holdings Guaranty and such failure shall continue for thirty (30) consecutive days, provided that such grace period shall not apply and a Default shall be deemed to have occurred promptly upon such breach if (x) such breach cannot, in Lender's reasonable determination, be cured by Borrower or Holdings during such period, or (y) such breach shall be deemed by Lender (in its reasonable discretion) to have a material adverse effect on the Collateral (or Lender's interest or rights therein or with respect thereto), the Current Asset Base or the other rights of Lender under this Agreement or any other Financing Agreement;
(C) any warranty or representation now or hereafter made by Borrower or any other Credit Party to Lender or in any of the Financing Agreements is untrue or incorrect in any material respect when made, or any schedule, certificate, statement, report, financial data, notice, or writing furnished at any time by Borrower or any other Credit Party to Lender is untrue or incorrect in any material respect on the date as of which the facts set forth therein are stated or certified or any of the foregoing omits to state a fact necessary to make the statements therein contained not misleading in any material respect;
(D) a judgment or order requiring payment in excess of $100,000 shall be rendered against Borrower or any other Credit Party and such judgment or order shall remain unsatisfied or undischarged and in effect for forty-five (45) consecutive days without a stay of enforcement or execution, provided that this subsection 9.1(D) shall not apply to any judgment for which Borrower or such other Credit Party is fully insured (except for normal deductibles in connection therewith), and with respect to which the insurer has assumed the defense and is not defending under reservation of right, and with respect to which Lender reasonably believes the insurer will pay the full amount thereof (except for normal deductibles in connection therewith);
(E) a notice of lien, levy or assessment is filed or recorded with respect to all or a substantial part of the assets of Borrower or any other Credit Party by the United States, or any department, agency or instrumentality thereof, or by any state, county, municipality or other governmental agency or any taxes or debts owing at any time or times hereafter to any one or more of them become a Lien upon all or a substantial part of Borrower's Collateral or the assets of or collateral provided by any such Credit Party, and (i) such lien, levy or assessment is not discharged or released or the enforcement thereof is not stayed within forty-five (45) days of the notice or attachment thereof, or (ii) if the enforcement thereof is stayed, such stay shall cease to be in effect, provided that this subsection 9.1(E) shall not apply to any liens, levies or assessments requiring payments in the aggregate for all such liens, levies or assessments of less than $50,000 or which relate to current taxes not yet due and payable;
(F) there shall occur any loss, theft, substantial damage or destruction of any item or items of Borrower's Collateral or any assets of or collateral provided by any other Credit Party for which Borrower or such Credit Party is not fully insured as required by this Agreement or any of the other Financing Agreements (a "Loss"), if the amount of such Loss not fully covered by insurance (including any deductible in connection therewith), together with the amount of all other Losses incurred by Borrower and the other Credit Parties not fully covered by insurance (including any deductibles in connection therewith) occurring in the same Fiscal Year, exceeds $250,000;
(G) all or any part of Borrower's Collateral or the assets of or collateral provided by any other Credit Party is attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes within the possession of any receiver, trustee, custodian or assignee for the benefit of creditors and on or before the thirtieth (30th) day thereafter such assets are not returned to Borrower or such Credit Party and/or such writ, distress warrant or levy is not dismissed, stayed or lifted if the amount of such Collateral or assets or collateral, together with any other such Collateral, assets and collateral that is so attached, seized, subjected to writ or distress warrant or levied upon, exceeds $100,000 at any time;
(H) a proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or statute is filed (i) against Borrower and an adjudication or appointment is made or order for relief is entered, or such proceeding remains undismissed for a period in excess of sixty (60) days, or (ii) by Borrower or Borrower makes an assignment for the benefit of creditors or Borrower takes any corporate action to authorize any of the foregoing;
(I) a proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or statute is filed (i) against any Credit Party (other than Borrower) and an adjudication or appointment is made or order for relief is entered, or such proceeding remains undismissed for a period in excess of sixty (60) days, or (ii) by any Credit Party (other than Borrower) or any such Credit Party makes an assignment for the benefit of creditors or any such Credit Party takes any corporate action to authorize any of the foregoing;
(J) Borrower or any other Credit Party voluntarily or involuntarily dissolves or is dissolved, terminates or is terminated;
(K) Borrower or any other Credit Party becomes insolvent or fails generally to pay its debts as they become due;
(L) Borrower or any other Credit Party is enjoined, restrained, or in any way prevented by the order of any court or any administrative or regulatory agency from conducting all or any material part of its business affairs;
(M) a breach by Borrower or any other Credit Party shall occur under any agreement, document or instrument (other than a Financing Agreement or an agreement, document or instrument evidencing the lending of money described in subsection 9.1(N)), whether heretofore, now or hereafter existing between Borrower or such other Credit Party and any other Person, and such breach is of a type which Lender believes in Good Faith, individually or when taken together with all other breaches described above, may have a material adverse effect on the properties, business, condition (financial or otherwise), results of operation or prospects of Borrower or any other Credit Party, and such breach continues unwaived for more than thirty (30) days after such breach first becomes known to Borrower or such Credit Party, provided that such grace period shall not apply, and a Default shall be deemed to have occurred promptly upon such breach, if such breach may not, in Lender's reasonable determination, be cured by Borrower or such other Credit Party during such thirty (30) day grace period;
(N) as to more than $100,000 in indebtedness in the aggregate at any time (other than with respect to the Liabilities), (i) Borrower or any other Credit Party shall fail to make any payment due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) on or in respect of any obligation for borrowed money and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such indebtedness; (ii) any other default under any agreement or instrument relating to any such indebtedness, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such indebtedness; or (iii) any such indebtedness shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof;
(O) any Credit Party shall, or shall attempt to, terminate or revoke any of its obligations under the applicable guarantee agreement or other Financing Agreement to which it is a party or breach any of the terms of such guarantee agreement or any Person executing a fidelity guaranty in favor of Lender in connection with the Liabilities shall, or shall attempt to, terminate or revoke such fidelity guaranty;
(P) a material and adverse change shall occur (i) in the present or reasonably foreseeable prospective business, operations or condition (financial or otherwise), properties or prospects of Borrower or any other Credit Party or in the value of any material portion of the Collateral of Borrower or any assets of or collateral provided by any other Credit Party or (ii) which materially impairs the ability of Borrower to perform Borrower's obligations under this Agreement and the other Financing Agreements or of any other Credit Party to perform its obligations under the Financing Agreements to which it is a party, in each case as determined by Lender in its sole discretion exercised in Good Faith;
(Q) Holdings shall cease to own, beneficially and of record, all of the issued and outstanding capital stock of Borrower; or HMG shall cease to own, beneficially and of record, all of the issued and outstanding capital stock of Holdings; or Allied shall cease to own, beneficially and of record, all of the outstanding capital stock of HMG;
(R) A Change of Control shall occur;
(S) the Person who is currently holding the positions of Co- Chairman and Chief Executive Officer of Allied and Chairman and Chief Executive Officer of Borrower, HMG and Holdings (or another Person reasonably acceptable to Lender who is appointed to such positions within 120 days following the date on which the Person holding such positions on the date hereof ceases to hold such positions) shall cease to hold such positions or perform comparable duties to those currently performed by such officer;
(T) the plan administrator of any Benefit Plan applies under Section 412(d) of the Internal Revenue Code for a waiver of the minimum funding standards of Section 412(a) of the Internal Revenue Code and Lender in Good Faith believes that the approval of such waiver could subject Borrower or any ERISA Affiliate of Borrower to liability in excess of $250,000;
(U) a Termination Event occurs which Lender in Good Faith believes could individually, or together with any other Termination Events subject either Borrower or any ERISA Affiliate of Borrower to liability in excess of $100,000;
(V) any breach or violation of any term or provision of the Holdings Subordination Agreement, the VP Subordination Agreement or the ▇▇▇▇▇ Subordination Agreement shall occur or any Person shall, or shall attempt to, terminate or revoke any of its obligations thereunder;
(W) HMG shall amend or modify the terms of the HMG Notes or the Series B Notes, except for amendments or modifications which extend the maturity of, or decrease the rate of interest payable under, the HMG Notes or Series B Notes or modify or amend covenants to make them less burdensome to HMG; or
(X) any "Default" as such term is defined in the GLC Term Loan Agreement shall have occurred; or any "Event of Default" as such term is defined in either of the ▇▇▇▇▇ Subordinated Notes or event which through the passage of time or the giving of notice or both would mature into such an "Event of Default" hereunder shall have occurred; or any "Event of Default" as such term is defined in the VCA Note or event which through the passage of time or the giving of notice or both would mature into such an "Event of Default" shall have occurred; then Lender may, upon notice to Borrower (whether any such event shall be voluntary i) terminate Lender's obligation to make advances to Borrower or involuntary or come about or be effected by operation to issue Letters of law or Credit at Borrower's request pursuant to or in compliance with any judgmentsubsection 2.2, decree or order of any court or any order, rule or regulation of any Governmental Entity):
and/or (aii) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make any payment with respect to Periodic Rent or the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement declare all of the RockGen Lessee under any Liabilities, including without limitation all of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) Borrower's contingent liabilities with respect to any other obligationLetters of Credit, covenant or agreement hereunderto be immediately due and payable, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness whereupon all of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated MaturityLiabilities, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially including without limitation all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief Borrower's contingent liabilities with respect to it or its debts under Title 11 any Letters of the Bankruptcy Code or any bankruptcyCredit, insolvency or other similar law now or hereafter in effectshall become immediately due and payable; provided, or (ii) the appointment howev limitation, all of a trustee, receiver, liquidator, custodian or other similar official Borrower's contingent liabilities with respect to it or any substantial part Letters of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding Credit, shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written automatically, without notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to itkind, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor be immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingpayable.
Appears in 1 contract
Sources: Loan and Security Agreement (Allied Digital Technologies Corp)
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) The occurrence of any one or more of the Guarantor or the RockGen Lessee under the Facility following events (hereinafter referred to as “Events of Default”) shall constitute a breach of this Lease by Tenant: (i) if Tenant shall fail to make pay the Basic Rental or any payment with respect to Periodic Rent or other sum when and as the Termination Value (including the Equity Portion of Termination Value and Debt Portion of Termination Value) when same becomes due and payable under such Facility Lease or this Guaranty within five (5) days after the same shall become due thereunder; or
(b) the Guarantor or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of continue for more than ten (10) Business Days days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantor, as applicable;
to Tenant; or (cii) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor if Tenant shall fail to perform or observe any covenant, obligation or agreement other term hereof to be performed or observed by it under any Calpine Document (other than any covenantTenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which such failure shall continue unremedied for more than thirty (130) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from Landlord, and Tenant shall not within such thirty (30) day period commence with due diligence and dispatch the Owner Participantcuring of such default, or, having so commenced, shall thereafter fail or neglect to prosecute or complete with due diligence and dispatch the Owner Lessor, the Indenture Trustee curing of such default; or the Pass Through Trustee; provided, however, (iii) if such condition canthere shall be any default by Tenant (or any person or entity which is affiliated with Tenant) under any lease with Landlord (or any person or entity which is affiliated with Landlord) which shall not be remedied within such 30-day the applicable grace period, then the period within which to remedy if any, provided therefor under such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant lease; or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes if Tenant or any of its affiliates shall make a general assignment for the benefit of its creditors; or
(v) admits , or shall admit in writing its inability to generally pay its debts as such debts they become duedue or shall file a petition in bankruptcy, or shall be adjudicated as insolvent or shall file a petition in any proceeding seeking any reorganization, arrangements, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, or shall file an answer admitting or fail timely to contest or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or any material part of its properties; or takes (v) if within ninety (90) days after the commencement of any comparable action proceeding against Tenant seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any foreign laws relating to insolvency;present or future statute, law or regulation, such proceeding shall not have been dismissed, or if, within ninety (90) days after the appointment without the consent of acquiescence of Tenant, of any trustee, receiver or liquidator of Tenant or of any material part of its properties, such appointment shall not have been vacated : or (vi) if this Lease or any estate of Tenant hereunder shall be levied upon under any attachment or execution and such attachment or execution is not vacated within ten (10) days.
(gb) an involuntary case or other proceeding shall be commenced against If, as a matter of law, Landlord has no right on the Guarantor or any Significant Subsidiary seeking (i) liquidationbankruptcy of Tenant to terminate this Lease, reorganization or other relief with respect to it then, if Tenant, as debtor, or its debts trustee wishes to assume or assign this Lease, in addition to curing or adequately assuring the cure of all defaults existing under Title this Lease on Tenant’s part on the date of filing of the proceeding (such assurances being defined below). Tenant, as debtor, or the trustee or assignee must also furnish adequate assurances of future performance under this Lease (as defined below). Adequate assurance of curing defaults means the posting with Landlord of a sum in cash sufficient to defray the cost of such a cure. Adequate assurance of future performance under this Lease means posting a deposit equal to three (3) months’ rent, including all other charges payable by Tenant hereunder, and, in the case of an assignee, assuring Landlord that the assignee is financially capable of assuming this Lease, and that its use of the Demised Premises will not be detrimental to Landlord. In a reorganization under Chapter 11 of the Bankruptcy Code Code, the debtor or any bankruptcy, insolvency trustee must assume this Lease or other similar law now or hereafter in effectassign it within one hundred twenty (120) days from the filing of the proceeding, or he shall be deemed to have rejected and terminated this Lease.
(iic) the appointment All amounts payable by Tenant to Landlord hereunder, if not paid when due, shall be subject to an administrative late charge of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or five percent (iii5%) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding amount due and, in addition, shall remain undismissed and unstayed for a period of 60 days;
bear interest from the due date until paid at the rate equal to two percent (h2%) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because excess of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; providedthen current “prime rate” published in The Wall Street Journal, however, that if such condition canbut not be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure excess of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuinglegal rate.
Appears in 1 contract
Defaults. The following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):
(a) It shall be a default (“Default”) under this Note and each of the Guarantor other Loan Documents if after the expiration of any applicable notice and grace period (including that set forth in Section 4.1(a) of the Loan Agreement, (i) any principal, interest or the RockGen Lessee other amount of money due under this Note is not paid in full when due, regardless of how such amount may have become due; (ii) any covenant, agreement, condition, representation or warranty herein or in any other Loan Documents is not fully and timely performed, observed or kept; or (iii) there shall occur any Default under the Facility Lease Deed of Trust or any other Loan Document. Upon the occurrence of a Default, Administrative Agent on behalf of the Lenders shall fail have the rights to make any payment with respect to Periodic Rent or declare the Termination Value (including unpaid principal balance and accrued but unpaid interest on this Note, and all other amounts due hereunder and under the Equity Portion of Termination Value and Debt Portion of Termination Value) when other Loan Documents, at once due and payable under (and upon such Facility Lease or this Guaranty within five (5) days after declaration, the same shall become be at once due thereunderand payable), to foreclose any liens and security interests securing payment hereof; orand subject to any limitations contained in the Loan Documents, to exercise any of its other rights, powers and remedies under this Note, under any other Loan Document, or at Law or in equity.
(b) All of the Guarantor or rights, remedies, powers and privileges (together, “Rights”) of Administrative Agent on behalf of the RockGen Lessee shall fail to make Lenders provided for in this Note and in any other amount Loan Document are cumulative of each other and, subject to any limitations contained in the Loan Documents, of any and all other Rights at Law or in equity. The resort to any Right shall not prevent the concurrent or subsequent employment of any other appropriate Right. No single or partial exercise of any Right shall exhaust it, or preclude any other or further exercise thereof, and every Right may be exercised at any time and from time to time. No failure by Administrative Agent or Lenders to exercise, nor delay in exercising any Right, including but not limited to the right to accelerate the maturity of this Note, shall be construed as a waiver of any Default or as a waiver of any Right. Without limiting the generality of the foregoing provisions, the acceptance by Named Lender from time to time of any payment under this Note which is past due or which is less than the payment in full of all amounts due and payable under any Operative Document after at the same shall become due thereunder and such failure shall have continued from a period of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice time of such failure by the RockGen Lessee and/or the Guarantorpayment, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) constitute a default by waiver of or impair or extinguish the Guarantor right of Administrative Agent on behalf of Lenders to accelerate the maturity of this Note or to exercise any Restricted Subsidiary under other Right at the time or at any instrument subsequent time, or instruments under which there is or may be secured or evidenced nullify any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due exercise of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effectRight, or (ii) constitute a waiver of the appointment requirement of punctual payment and performance or a trusteenovation in any respect.
(c) If any holder of this Note retains an attorney in connection with any Default or at maturity or to collect, receiverenforce or defend this Note or any other Loan Document in any lawsuit or in any probate, liquidatorreorganization, custodian bankruptcy, arbitration or other similar official proceeding, then, subject to the limitations in the Loan Agreement, B▇▇▇▇▇▇▇ agrees to pay to each such holder, in addition to principal, interest and any other sums owing to Lenders hereunder and under the other Loan Documents, all costs and expenses incurred by such holder in trying to collect this Note or in any such suit or proceeding, including, without limitation, reasonable attorneys’ fees and expenses, investigation costs and all court costs, whether or not suit is filed hereon, whether before or after the Maturity Date, or whether in connection with respect to it bankruptcy, insolvency or appeal, or whether collection is made against Borrower or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case endorser or any other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation person primarily or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof; provided, however, that if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingsecondarily liable hereunder.
Appears in 1 contract
Sources: Deed of Trust Note (Bluerock Residential Growth REIT, Inc.)
Defaults. The Tenant further agrees that any one or more of the following events shall constitute an "Event be considered events of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant default as said term is used herein, that is to or in compliance with any judgmentsay, decree or order of any court or any order, rule or regulation of any Governmental Entity):if:
(a) the Guarantor Tenant shall be adjudged an involuntary bankrupt, or the RockGen Lessee a decree or order approving, as properly filed, a petition or answer filed against Tenant asking reorganization of Tenant under the Facility Lease Federal bankruptcy laws as now or hereafter amended, or under the laws of any State, shall fail to make be entered, and any payment with respect to Periodic Rent such decree or judgment or order shall not have been vacated or stayed or set aside within 30 days from the Termination Value (including date o the Equity Portion of Termination Value and Debt Portion of Termination Value) when due and payable under such Facility Lease entry or this Guaranty within five (5) days after the same shall become due thereundergranting thereof; or
(b) Tenant shall file or admit the Guarantor jurisdiction of the court and the material allegations contained in any petition in bankruptcy or any petition pursuant or purporting to be pursuant to the RockGen Lessee Federal bankruptcy laws now or hereafter amended, or Tenant shall fail institute any proceedings or shall give its consent to make the institution of any other amount payable proceedings for any relief of Tenant under any Operative Document after bankruptcy or insolvency laws or any laws relating to the same shall become due thereunder and such failure shall have continued from a period relief of ten (10) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by the RockGen Lessee and/or the Guarantordebtors, as applicable;readjustment or indebtedness, reorganization, arrangements, composition or extension; or
(c) The Guarantor Tenant shall fail to comply with its covenants set forth in Section 3.3 (transfer make any assignment for the benefit of RockGen Lessee ownership), 3.6 (Guarantor merger) creditors or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform apply for or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, and agreement with respect to, any nonmonetary obligation, covenant or agreement of the RockGen Lessee under any of the Operative Documents, 30 days after receipt by the Guarantor of written notice thereof from the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents consent to the appointment of a Custodian receiver for Tenant or any of it or for all or substantially all the property of its property;
(iv) makes a general assignment for the benefit of its creditorsTenant; or
(vd) admits in writing its inability to generally pay its debts as The Leased Premises are levied upon or attached by any revenue officer, Sheriff, or similar officer; or
(e) A decree or order appointing a receiver of the property of Tenant shall be made and such debts become duedecree or order shall not have been vacated, stayed or set aside within 30 days from the date of entry or granting thereof; or
(f) Tenant shall vacate the Leased Premises or takes any comparable action under any foreign laws relating to insolvency;abandon the same during the term hereof; or
(g) an involuntary case Tenant shall default in any payment of rent or other proceeding shall charge required to be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; paid by Tenant hereunder when due as herein provided and such involuntary case or other proceeding default shall remain undismissed and unstayed continue for a period of 60 days;5 days after notice thereof in writing to Tenant; or
(h) If Tenant shall fail to contest the validity of any representation lien or warranty made by claimed lien and give security to Landlord to insure payment thereof, or having commenced to contest the Guarantor herein same and having given such security, shall prove fail to prosecute such contest with diligence, or shall fail to have the same released and satisfy any judgment rendered thereon, and such default continues for ten (10) days after notice thereof in writing to Tenant; or
(i) Tenant shall default in keeping, observing or performing any of the other covenants or agreements herein contained to be kept, observed and performed by Tenant, and such default shall continue for thirty (30) days after notice thereof in writing to Tenant; or
(j) Tenant shall repeatedly be late in the payment of rent or other charges required to be paid hereunder or shall repeatedly default in the keeping, observing, or performing of any other covenants or agreements herein contained to be kept, observed, or performed by Tenant (provided notice of such payment or other defaults shall have been incorrect given to Tenant, but whether or not Tenant shall have timely cured any such payment or other defaults of which notice was given). Upon the occurrence of any one or more of such events of default, Landlord may terminate this Lease. Upon termination of this Lease, Landlord may re-enter the Leased Premises with or without process of law using such force as may be necessary, and remove all persons, fixtures and chattel therefrom, and Landlord shall not be liable to prosecution for any damages resulting therefrom. Such re-entry and repossession shall not work a forfeiture of the rents or other charges to be paid and covenants to be performed by Tenant during the full term of this Lease. Upon such repossession of the Leased Premises, Landlord shall be entitled to recover as liquidated damages and not as a penalty a sum of money equal to the value of the rent and other sums provided herein to be paid by Tenant to Landlord for the remainder of the Lease term, less the fair rental value of the Leased Premises for said period. Upon the happening of any one or more of the above-mentioned events Landlord may repossess the leased Premises by forcible entry or detainer suit, or otherwise, without demand or notice of any kind to Tenant (except as herein about provided for) and without terminating this Lease, in which Landlord may but shall be under no obligation so to do, relet all or any part of the Leased Premises for such rent and upon such terms as shall be satisfactory to Landlord (including the right to relet the Leased Premises for a term greater or lesser than that remaining, under the Lease term, and the right to relet the Leased Premises as a part of a larger area, and the right to charge the character or use made of the Leased Premises). For the purpose of such reletting, Landlord may decorate or make any repairs, changes, alterations or additions in or to the Leased Premises that may be necessary or convenient. If Landlord does not relet the Leased Premise, Tenant shall pay to Landlord on demand as liquidated damages and not as a penalty a sum equal to the amount of the rent, and other sums provided herein to be paid by Tenant for the remainder of the Lease term. If the leased Premises are relet and a sufficient sum shall not be realized from such reletting after paying all of the expenses of such decorations, repairs, changes, alterations, additions, the expenses of such decorations, repairs, changes, alterations, additions, the expenses of such reletting and the collection of the rent accruing therefrom (including, but not by way of limitation, attorneys’ fees, and broker’s Commissions), to satisfy the rent and other charges herein provided to be paid for the remainder of the Lease term, Tenant shall pay to Landlord on demand any deficiency and Tenant agrees that Landlord may file suit to recover any sums falling due under the terms of this Section from time to time. If default shall he made in any material respect when made covenant, agreement, condition or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues undertaking herein contained to be material kept, observed and unremedied for performed by Tenant, other than the making of any payments as herein provided, which cannot with due diligence be cured within a period of 30 thirty (30) days, and if notice thereof in writing shall have been given to Tenant, and if Tenant, prior to the expiration of thirty (30) days from and after receipt the giving of such Notice, commences to eliminate the cause of such default and proceeds diligently and with reasonable dispatch to take all steps and do all work required to cure such default and does so cure such default, then Landlord shall not have the right to declare the said term ended by reason of such default or to repossess without terminating the Guarantor of written notice thereof; Lease, provided, however, that if the curing of any default in such condition canmanner shall not be remedied within such 30-day period, then the period within which construed to remedy such condition shall be extended up to an additional 60 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day period. The grace periods set forth in Section 7.1(a) and (b) above shall not affect in any way limit or restrict the right hereunder of any Beneficiary entitled Landlord to a payment declare the said term ended or to repossess without terminating the Lease, and to enforce all of any amount payable to it, or performance of any obligation, by the RockGen Lessee under any Operative Document to demand prompt payment thereof, or performance thereof, by the Guarantor immediately upon any failure of the RockGen Lessee to pay or perform the same when it has become due (andits rights and remedies hereunder, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) and no remedies under the Facility Lease may be exercised until a Calpine Guaranty Event of Default has occurred and is continuingother default not so cured.
Appears in 1 contract
Sources: Industrial Space Lease (Power Solutions International, Inc.)
Defaults. The occurrence of any of the following events shall constitute an "Event of Default" hereunder (whether any such event shall be voluntary or involuntary or come about or be effected Default by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any Governmental Entity):Subtenant:
(a) the Guarantor or the RockGen Lessee under the Facility Lease shall fail to make If any payment with respect to Periodic Rent or the Termination Value default of either party continues uncorrected for thirty (including the Equity Portion of Termination Value and Debt Portion of Termination Value30) when due and payable under such Facility Lease or this Guaranty within days (five (5) days after in the same shall become due thereunder; or
(b) case of a default in the Guarantor payment of Rent or the RockGen Lessee shall fail to make any other amount payable under any Operative Document after the same shall become due thereunder and such failure shall have continued from a period of ten (10hereunder) Business Days after receipt by the RockGen Lessee and the Guarantor of written notice of such failure by from the RockGen Lessee and/or other party, stating with particularity the Guarantor, as applicable;
(c) The Guarantor shall fail to comply with its covenants set forth in Section 3.3 (transfer of RockGen Lessee ownership), 3.6 (Guarantor merger) or 8.4 (assignment of Guaranty) of this Guaranty.
(d) the Guarantor shall fail to perform or observe any covenant, obligation or agreement to be performed or observed by it under any Calpine Document (other than any covenant, obligation or agreement referred to in clauses (a) or (b) of this Section 7.1) in any material respect, which shall continue unremedied for (1) with respect to the Guarantor's guaranty of, nature and agreement with respect to, any nonmonetary obligation, covenant or agreement extent of the RockGen Lessee under any of default, the Operative Documents, 30 days after receipt party giving such notice may terminate this Sublease by the Guarantor of written notice thereof from (the Owner Participant, the Owner Lessor, the Indenture Trustee or the Pass Through Trustee; provided, however, if such condition cannot be remedied within such 30-day period, then the period within which to remedy such condition shall be extended up to an additional 180 days, so long as the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 180-day period, and (2) with respect to any other obligation, covenant or agreement hereunder, 30 days after receipt by the Guarantor of written notice thereof;
(e) there shall have occurred either (i) a default by the Guarantor or any Restricted Subsidiary under any instrument or instruments under which there is or may be secured or evidenced any Indebtedness of the Guarantor or any Restricted Subsidiary of the Guarantor (other than the Obligations) having an outstanding principal amount of $50,000,000 (or its foreign currency equivalent) or more individually or in the aggregate that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity, unless such declaration has been rescinded within 30 days or (ii) a default by the Guarantor or any Restricted Subsidiary in the payment when due of any portion of the principal under any such instrument or instruments, and such unpaid portion exceeds $50,000,000 (or its foreign currency equivalent) individually or in the aggregate and is not paid, or such default is not cured or waived, within any grace period applicable thereto, unless such Indebtedness is discharged within 30 days of the Guarantor or a Restricted Subsidiary becoming aware of such default;
(f) the Guarantor or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to generally pay its debts as such debts become due; or takes any comparable action under any foreign laws relating to insolvency;
(g) an involuntary case or other proceeding shall be commenced against the Guarantor or any Significant Subsidiary seeking (i) liquidation, reorganization or other relief with respect to it or its debts under Title 11 of the Bankruptcy Code or any bankruptcy, insolvency or other similar law now or hereafter in effect, or (ii) the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to it or any substantial part of its property or (iii) the winding-up or liquidation of the Guarantor or such Significant Subsidiary; and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days;
(h) any representation or warranty made by the Guarantor herein shall prove to have been incorrect in any material respect when made or misleading in any material respect when made because of the omission to state a material fact and such incorrect or misleading representation is and continues to be material and unremedied for a period of 30 days after receipt by the Guarantor of written notice thereof“Termination Notice”); provided, however, that if such condition canTermination Notice shall not be remedied effective if within thirty (30) days (five (5) days in the case of a default in the payment of Rent or any other amount due hereunder) after its receipt the party in default either (i) in the event of a payment default, pays the full amount due, (ii) undertakes to correct such default and diligently pursues the cure of such default to completion or (iii) commences an alternate dispute resolution proceeding or contests the existence of the default in a court of competent jurisdiction and complies with the final order of any court in which the case is tried or the final order of any court to which an appeal is taken within thirty (30-day period) days after entry of final judgment. No delay or omission of either party in exercising any right accruing upon any default of the other party shall impair any such right or be construed to be a waiver thereof, and every such right may be exercised at any time during the continuance of such default. A waiver by either of the parties of a breach or a default under any of the terms and conditions of this Sublease by the other party shall not be construed to be a waiver of any subsequent breach or default or of any other term or condition of this Sublease. No remedy provided in this Sublease shall be exclusive, but each shall be cumulative with all other remedies provided in this Sublease, the Master Lease and at law or equity.
(b) Should either of the parties at any time fail or omit to do any act or thing provided under this Sublease to be done by such party, then the period within which other party may, in its sole discretion, itself do or cause to remedy be done such condition shall be extended up to an additional 60 days, so long as act or thing after expiration of the Guarantor diligently pursues such remedy and such condition is reasonably capable of being remedied within such additional 60-day applicable notice and/or grace period. The grace periods set forth Any monies paid in Section 7.1(a) and (b) above shall not affect in any way connection with the right hereunder of any Beneficiary entitled to a payment of any amount payable to it, or performance of any obligationsuch act or thing shall, if paid by Sublandlord, constitute Additional Rent to be due and payable within fifteen (15) days of notice given by Sublandlord of the RockGen Lessee under any Operative Document to demand prompt payment nature and amount thereof, or performance and if paid by Subtenant, shall constitute advance Rent and shall, upon notice given by Subtenant of the nature and amount thereof, by be credited against the Guarantor immediately upon any failure next monthly installment of the RockGen Lessee to pay or perform the same when it has become due (and, for the avoidance of doubt, without regard to the existence of any cure or grace period before such failure by the RockGen Lessee becomes a Lease Event of Default); provided, however, notwithstanding the foregoing, no Lease Event of Default under Section 16(m) Rent and no remedies under the Facility Lease may be exercised subsequent installments until a Calpine Guaranty Event of Default has occurred and is continuingcredited in full.
Appears in 1 contract
Sources: Sublease Agreement (Finwise Bancorp)