Tenant Events of Default. Any one or more of the following shall constitute a “Tenant Event of Default”: (a) Tenant shall fail to pay any installment of Rent when due and such failure is not cured within six (6) days after written notice from Landlord (which notice for purposes of this provision may be in the form of an email and shall be deemed effective as of transmittal (without requirement that receipt thereof be acknowledged), provided that (without vitiating the effectiveness of such email notice) a separate notice is separately delivered on the same day or, if such day is not a Business Day, on the following Business Day, which separate notice shall be delivered in accordance with Article XXXV (it being understood that the delivery of such separate notice shall not vitiate the effectiveness of such email notice)) of Tenant’s failure to pay such installment of Rent when due (and such notice of failure from Landlord may be given any time after such installment of Rent is one (1) day late); (b) Tenant shall fail to pay any Additional Charge (excluding, for the avoidance of doubt the Minimum Cap Ex Amount) within seven (7) days after written notice from Landlord of Tenant’s failure to pay such Additional Charge when due (and such notice of failure from Landlord may be given any time after such payment of any Additional Charge is one (1) day late); (c) Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall: (i) file a petition in bankruptcy or a petition to take advantage of any insolvency law or statute under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law; 99 (ii) make an assignment for the benefit of its creditors; or (iii) consent to the appointment of a receiver of itself or of the whole or substantially all of its property; (d) (i) Tenant shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant, a receiver of Tenant or of all or substantially all of Tenant’s property, or approving a petition filed against Tenant seeking reorganization or arrangement of Tenant under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; (i) Unless the Guarantor EOD Conditions exist, Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Guarantor, a receiver of Guarantor or of all or substantially all of Guarantor’s property, or approving a petition filed against Guarantor seeking reorganization or arrangement of Guarantor under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; or (e) entry of an order or decree liquidating or dissolving Tenant, Manager or, unless the Guarantor EOD Conditions exist, Guarantor, provided that the same shall not constitute a Tenant Event of Default if (i) such order or decree shall be vacated, set aside or stayed within ninety (90) days from the date of the entry thereof, or (ii) with respect to Manager only, (x) Manager is not an Affiliate of Tenant, or (y) another wholly-owned subsidiary of CEC assumes the MLSA and the other Lease/MLSA Related Agreements to which Manager is a party; (f) Tenant shall fail to cause the Facility to be Operated (as defined in the MLSA) in a Non-Discriminatory (as defined in the MLSA) manner, in accordance with the Operating Standard (as defined in the MLSA) and subject to Manager’s Standard of Care (as defined in the MLSA) (in each case as and to the extent required under the MLSA, including as provided in Section 2.1.1, Section 2.1.2, Section 2.1.3, Section 2.1.4, Section 2.3.1, and Section 2.3.2 of the MLSA, but subject to Section 5.9.1 of the MLSA), which failure would reasonably be expected to have a material and adverse effect on Landlord or on the Facility, and which failure is not cured within thirty (30) days following notice thereof from Landlord to Tenant; provided that, if: (i) such failure is not susceptible of cure within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputation, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) days) to cure such failure so long as Tenant commences to cure such failure or other breach within such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure); (g) the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached in any proceeding relating to more than Twenty-Five Million and No/100 Dollars ($25,000,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or paid or bonded or otherwise similarly secured payment) within the later of ninety (90) days after 100 commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law; (h) if Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or more final judgments aggregating in excess of the amount of Seventy-Five Million and No/100 Dollars ($75,000,000.00), which judgments are not discharged or effectively waived or stayed for a period of forty-five (45) consecutive days; (i) unless the Guarantor EOD Conditions exist, a Lease Guarantor Event of Default shall occur under the MLSA; (j) except as a result of a Permitted Operation Interruption, Tenant fails to cause the Facility to be Continuously Operated during the Term; (k) any applicable Gaming License or other license material to the Facility’s operation for its Primary Intended Use is at any time terminated or revoked or suspended or placed under a trusteeship (and in each case such termination, revocation, suspension or trusteeship causes cessation of Gaming activity at the Facility) for more than thirty (30) days and such termination, revocation, suspension or trusteeship is not stayed pending appeal and would reasonably be expected to have a material adverse effect on Tenant or on the Facility; (l) if a Licensing Event with respect to Tenant under clause (a) of the definition of Licensing Event shall occur and is not resolved in accordance with Section 41.13 within the later of (i) thirty (30) days or (ii) such additional time period as may be permitted by the applicable Gaming Authorities; (m) Tenant fails to comply with any Additional Fee Mortgagee Requirements (and in the case of any representation or warranty made by Tenant under Section 8.2 and Exhibit L having been false or misleading as of the date the representation or warranty was made, such false or misleading representation or warranty has had or is reasonably expected to result in a Material Adverse Effect (as defined in Exhibit L)), which default is not cured within the shortest applicable cure period set forth in the Fee Mortgage Documents (i.e., such default is not cured prior to the same constituting an “Event of Default” under any Fee Mortgage Document), if the effect of such default is to cause, or to permit the holder or holders of the applicable Fee Mortgage (or a trustee or agent on behalf of such holder or holders) to cause, such Fee Mortgage to become or be declared due and payable (or redeemable) prior to its stated maturity (without regard to any standstill or forbearance period that might be provided to Landlord with respect to the same); provided, however, that, if any such standstill or forbearance period shall be provided to Landlord with respect to the same, so long as Tenant is reasonably cooperating with Landlord in connection with a potential refinancing of the defaulted Fee Mortgage(s) by providing information with respect to the Leased Property, Tenant or its Affiliates (excluding (i) any material non-public information, unless the same shall only be provided to potential financing sources in accordance with and subject to Section 41.22 hereof, and (ii) any information subject to bona fide confidentiality restrictions) requested by Landlord in order to satisfy the market standards to which such potential refinancing lenders customarily adhere or 101 which may be reasonably required by prospective investors and/or rating agencies, such default shall not constitute a Tenant Event of Default hereunder for the first half of the shortest applicable standstill or forbearance period so provided to Landlord, as determined by Landlord in its sole but good faith discretion; (n) a transfer of Tenant’s interest in this Lease (including pursuant to a Change in Control) shall have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in default of the provisions set forth in Section 22.1 below; (o) if Tenant shall fail to observe or perform any other term, covenant or condition of this Lease and such failure is not cured within thirty (30) days after written notice thereof from Landlord, provided, however, if such failure cannot reasonably be cured within such thirty (30) day period and Tenant shall have commenced to cure such failure within such thirty (30) day period and thereafter diligently proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Tenant in the exercise of due diligence to cure such failure, provided that, with respect to any failure to perform (i) that is still continuing on or after the first day of the sixth (6th) Lease Year such cure period shall not extend beyond the later of such first day of the sixth (6th) Lease Year or one-hundred and eighty (180) days in the aggregate, and (ii) that is first arising on or after the first day of the sixth (6th) Lease Year, such cure period shall not exceed one-hundred and eighty (180) days in the aggregate, provided, further however, that no Tenant Event of Default under this clause (o) or under clause (p) below shall be deemed to exist under this Lease during any time the curing thereof is prevented by an Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay, Tenant remedies the default within the time periods otherwise required hereunder; (p) the occurrence of a Tenant Event of Default pursuant to Section 10.5(a)(x); and (q) unless the Guarantor EOD Conditions exist, if Guarantor shall, in any judicial or quasi-judicial case, action or proceeding, contest (or collude with or otherwise affirmatively assist any other Person, or solicit or cause to be solicited any other Person to contest) the validity or enforceability of Guarantor’s obligations under the MLSA (or any Qualified Replacement Guarantor’s obligations under a Replacement Guaranty). Notwithstanding anything contained herein to the contrary, (x) Landlord shall deliver all notices required pursuant to Section 16.1 concurrently to Tenant and Guarantor and (y) a default by Tenant under any Permitted Leasehold Mortgage shall not in and of itself be a Tenant Event of Default hereunder (it being understood that if the circumstances that cause such default independently comprise a default hereunder that continues beyond all applicable notice and cure periods hereunder then such circumstances would cause a Tenant Default hereunder). Notwithstanding the foregoing, (i) Tenant shall not be in breach of this Lease solely as a result of the exercise by the party (other than Tenant, CEC, CEOC or any of their respective Affiliates) to any of the Permitted Exception Documents of such party’s rights thereunder so long as Tenant undertakes commercially reasonable efforts to cause such party to comply or otherwise minimize such breach, and (ii) in the event that Tenant is required, under the express terms of any Permitted Exception Document(s), to take or refrain from taking any action, and taking or refraining from 102 taking such action would result in a default under this Lease, then Tenant shall advise Landlord of the same, and Tenant and Landlord shall reasonably cooperate in order to address the same in a mutually acceptable manner, and so as to minimize any harm or liability to Landlord and to Tenant. For the avoidance of doubt, in no event shall a Permitted Exception Document excuse Tenant from its obligation to pay Rent or Additional Charges. 16.2
Appears in 1 contract
Samples: Lease Agreement
Tenant Events of Default. Any one or more of the The following shall constitute events, herein individually referred to as a “Tenant "Event of Default”", each shall be deemed to be events of nonperformance by Tenant under this Lease: (a) FREEPORT OFFICE CENTER 9 § Tenant shall fail to pay any installment of the Base Rent when due and such failure is not cured or Building Costs within six five (65) business days after of receipt of written notice from Landlord that such payment is past due or any other payment or reimbursement to Landlord required herein within ten (which notice for purposes 10) calendar days of this provision may be in the form receipt of an email and shall be deemed effective as of transmittal (without requirement that receipt thereof be acknowledged), provided that (without vitiating the effectiveness of such email notice) a separate notice is separately delivered on the same day or, if such day is not a Business Day, on the following Business Day, which separate notice shall be delivered in accordance with Article XXXV (it being understood that the delivery of such separate notice shall not vitiate the effectiveness of such email notice)) of Tenant’s failure to pay such installment of Rent when due (and such notice of failure from Landlord may be given any time after such installment of Rent is one (1) day late); (b) Tenant shall fail to pay any Additional Charge (excluding, for the avoidance of doubt the Minimum Cap Ex Amount) within seven (7) days after written notice from Landlord of Tenant’s failure to pay such Additional Charge when due (and such notice of failure from Landlord may be given any time after that such payment of any Additional Charge is one (1) day late); (c) past due. § The Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall: shall (i) file a petition in bankruptcy or a petition to take advantage of any insolvency law or statute under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state lawbecome insolvent; 99 (ii) make an a general assignment for the benefit of its creditors; or (iii) consent commence any case, proceeding or other action seeking to the have an order for relief entered on its behalf as a debtor or to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors or seeking appointment of a receiver of itself receiver, trustee, custodian or other similar official for it or for all or of the whole or substantially all any substantial part of its property; (d) . § Any case, preceding or other action against the Tenant hereunder shall be commenced seeking (i) Tenant shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter to have an order for relief entered against it as debtor or decree appointingto adjudicate it a bankrupt insolvent; (ii) reorganization, without the consent arrangement, adjustment, liquidation, dissolution or composition of Tenantit or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors; (iii) appointment of a receiver of Tenant receiver, trustee, custodian or of other similar official for it or for all or substantially all any substantial part of Tenant’s its property, or approving a petition filed against Tenant seeking reorganization or arrangement of Tenant under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgmentcase, proceeding or other action (a) results in the entry of an order or decree shall for relief against it which it is not be vacated or set aside or fully stayed within ten (10) business days after the entry thereof or (b) shall remain undismissed for a period of sixty (60) days from the date of the entry thereof; (i) Unless the Guarantor EOD Conditions exist, Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Guarantor, a receiver of Guarantor or of all or substantially all of Guarantor’s property, or approving a petition filed against Guarantor seeking reorganization or arrangement of Guarantor under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §days. § 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; or (e) entry of an order or decree liquidating or dissolving Tenant, Manager or, unless the Guarantor EOD Conditions exist, Guarantor, provided that the same shall not constitute a Tenant Event of Default if (i) such order or decree shall be vacated, set aside or stayed within ninety (90) days from the date of the entry thereof, or (ii) with respect to Manager only, (x) Manager is not an Affiliate of Tenant, or (y) another wholly-owned subsidiary of CEC assumes the MLSA and the other Lease/MLSA Related Agreements to which Manager is a party; (f) Tenant shall fail to cause discharge or bond around any lien placed upon the Facility to be Operated (as defined Project in the MLSA) in a Non-Discriminatory (as defined in the MLSA) manner, in accordance with the Operating Standard (as defined in the MLSA) and subject to Manager’s Standard violation of Care (as defined in the MLSA) (in each case as and to the extent required under the MLSA, including as provided in Section 2.1.1, Section 2.1.2, Section 2.1.3, Section 2.1.4, Section 2.3.1, and Section 2.3.2 5.9 of the MLSA, but subject to Section 5.9.1 of the MLSA), which failure would reasonably be expected to have a material and adverse effect on Landlord or on the Facility, and which failure is not cured this Lease within thirty (30) days following after written notice thereof from Landlord to Tenant; provided thatTenant that any such lien or encumbrance is filed against the Project, if: (i) unless such failure lien is not susceptible of cure within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputationcontested in good faith by Tenant by appropriate judicial, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) days) to cure such failure so long as Tenant commences to cure such failure administrative or other breach within comparable proceedings in which case Tenant shall bond around such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure); (g) the estate or interest of lien. § Tenant in the Leased Property or any part thereof shall be levied upon or attached in any proceeding relating to more than Twenty-Five Million and No/100 Dollars ($25,000,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or paid or bonded or otherwise similarly secured payment) within the later of ninety (90) days after 100 commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law; (h) if Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or more final judgments aggregating in excess of the amount of Seventy-Five Million and No/100 Dollars ($75,000,000.00), which judgments are not discharged or effectively waived or stayed for a period of forty-five (45) consecutive days; (i) unless the Guarantor EOD Conditions exist, a Lease Guarantor Event of Default shall occur under the MLSA; (j) except as a result of a Permitted Operation Interruption, Tenant fails to cause the Facility to be Continuously Operated during the Term; (k) any applicable Gaming License or other license material to the Facility’s operation for its Primary Intended Use is at any time terminated or revoked or suspended or placed under a trusteeship (and in each case such termination, revocation, suspension or trusteeship causes cessation of Gaming activity at the Facility) for more than thirty (30) days and such termination, revocation, suspension or trusteeship is not stayed pending appeal and would reasonably be expected to have a material adverse effect on Tenant or on the Facility; (l) if a Licensing Event with respect to Tenant under clause (a) of the definition of Licensing Event shall occur and is not resolved in accordance with Section 41.13 within the later of (i) thirty (30) days or (ii) such additional time period as may be permitted by the applicable Gaming Authorities; (m) Tenant fails to comply with any Additional Fee Mortgagee Requirements (term, provision or covenant of this Lease, other than those listed in this Section 8.1 and in the case of any representation or warranty made by Tenant under Section 8.2 and Exhibit L having been false or misleading as of the date the representation or warranty was made, such false or misleading representation or warranty has had or is reasonably expected to result in a Material Adverse Effect (as defined in Exhibit L)), which default is not cured within the shortest applicable cure period set forth in the Fee Mortgage Documents (i.e., such default is not cured prior to the same constituting an “Event of Default” under any Fee Mortgage Document), if the effect of such default is to cause, or to permit the holder or holders of the applicable Fee Mortgage (or a trustee or agent on behalf of such holder or holders) to cause, such Fee Mortgage to become or be declared due and payable (or redeemable) prior to its stated maturity (without regard to any standstill or forbearance period that might be provided to Landlord with respect to the same); provided, however, that, if any such standstill or forbearance period shall be provided to Landlord with respect to the same, so long as Tenant is reasonably cooperating with Landlord in connection with a potential refinancing of the defaulted Fee Mortgage(s) by providing information with respect to the Leased Property, Tenant or its Affiliates (excluding (i) any material non-public information, unless the same shall only be provided to potential financing sources in accordance with and subject to Section 41.22 hereof, and (ii) any information subject to bona fide confidentiality restrictions) requested by Landlord in order to satisfy the market standards to which such potential refinancing lenders customarily adhere or 101 which may be reasonably required by prospective investors and/or rating agencies, such default shall not constitute a Tenant Event of Default hereunder for the first half of the shortest applicable standstill or forbearance period so provided to Landlord, as determined by Landlord in its sole but good faith discretion; (n) a transfer of Tenant’s interest in this Lease (including pursuant to a Change in Control) shall have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in default of the provisions set forth in Section 22.1 below; (o) if Tenant shall fail to observe or perform any other term, covenant or condition of this Lease and cure such failure is not cured within thirty (30) days after written notice thereof from Landlord, provided, however, if to Tenant unless such failure cure cannot reasonably be cured accomplished within such thirty (30) day period and days, in which event Tenant shall have commenced to cure such failure within such thirty (30) day period and thereafter diligently proceeds to cure the same, such thirty (30) day period shall be extended for such additional time as is reasonably necessary for Tenant in the exercise of due diligence to cure such failure, provided that, with respect to any failure to perform (i) that is still continuing on or after the first day of the sixth (6th) Lease Year accomplish such cure period shall not extend beyond the later of such first day of the sixth (6th) Lease Year or one-hundred provided Tenant promptly commences and eighty (180) days in the aggregate, and (ii) that is first arising on or after the first day of the sixth (6th) Lease Year, diligently prosecutes such cure period shall not exceed one-hundred and eighty (180) days in the aggregate, provided, further however, that no Tenant Event of Default under this clause (o) or under clause (p) below shall be deemed to exist under this Lease during any time the curing thereof is prevented by an Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay, Tenant remedies the default within the time periods otherwise required hereunder; (p) the occurrence of a Tenant Event of Default pursuant to Section 10.5(a)(x); and (q) unless the Guarantor EOD Conditions exist, if Guarantor shall, in any judicial or quasi-judicial case, action or proceeding, contest (or collude with or otherwise affirmatively assist any other Person, or solicit or cause to be solicited any other Person to contest) the validity or enforceability of Guarantor’s obligations under the MLSA (or any Qualified Replacement Guarantor’s obligations under a Replacement Guaranty). Notwithstanding anything contained herein to the contrary, (x) Landlord shall deliver all notices required pursuant to Section 16.1 concurrently to Tenant and Guarantor and (y) a default by Tenant under any Permitted Leasehold Mortgage shall not in and of itself be a Tenant Event of Default hereunder (it being understood that if the circumstances that cause such default independently comprise a default hereunder that continues beyond all applicable notice and cure periods hereunder then such circumstances would cause a Tenant Default hereunder). Notwithstanding the foregoing, (i) Tenant shall not be in breach of this Lease solely as a result of the exercise by the party (other than Tenant, CEC, CEOC or any of their respective Affiliates) to any of the Permitted Exception Documents of such party’s rights thereunder so long as Tenant undertakes commercially reasonable efforts to cause such party to comply or otherwise minimize such breach, and (ii) in the event that Tenant is required, under the express terms of any Permitted Exception Document(s), to take or refrain from taking any action, and taking or refraining from 102 taking such action would result in a default under this Lease, then Tenant shall advise Landlord of the same, and Tenant and Landlord shall reasonably cooperate in order to address the same in a mutually acceptable manner, and so as to minimize any harm or liability to Landlord and to Tenant. For the avoidance of doubt, in no event shall a Permitted Exception Document excuse Tenant from its obligation to pay Rent or Additional Charges. 16.2completion.
Appears in 1 contract
Tenant Events of Default. Any one or more The occurrence of any of the following shall constitute a an “Tenant Event of Default”” by Tenant under this Lease: (ai) Tenant shall fail fails to pay any installment of Rent when which is due and payable hereunder by Tenant and such failure is not cured within six continues for a period of fifteen (615) days after written Tenant’s receipt of notice thereof from Landlord (which notice for purposes of this provision may be in the form of an email and shall be deemed effective as of transmittal (without requirement that receipt thereof be acknowledged)provided, provided that (without vitiating the effectiveness of such email notice) a separate notice is separately delivered on the same day orhowever, if such day is not a Business Day, on the following Business Day, which separate notice shall be delivered in accordance with Article XXXV (it being understood that the delivery of such separate notice Landlord shall not vitiate the effectiveness of such email notice)) of Tenant’s failure be required to pay such installment of Rent when due (and provide such notice more than twice in any Lease Year, in which case an Event of failure from Landlord may be given any time after such installment of Rent is one Default shall occur fifteen (1) day late); (b) Tenant shall fail to pay any Additional Charge (excluding, for the avoidance of doubt the Minimum Cap Ex Amount) within seven (715) days after written notice from Landlord of Tenant’s failure Tenant fails to pay such Additional Charge when due (and such notice any installment of failure from Landlord may be given any time after such payment of any Additional Charge is one (1) day lateRent); (c) Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall: (i) file a petition in bankruptcy or a petition to take advantage of any insolvency law or statute under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law; 99 (ii) make an assignment for the benefit of its creditors; or (iii) consent to the appointment of a receiver of itself or of the whole or substantially all of its property; (d) (i) Tenant shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant, a receiver of Tenant or of all or substantially all of Tenant’s property, or approving a petition filed against Tenant seeking reorganization or arrangement of Tenant under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; (i) Unless the Guarantor EOD Conditions exist, Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Guarantor, a receiver of Guarantor or of all or substantially all of Guarantor’s property, or approving a petition filed against Guarantor seeking reorganization or arrangement of Guarantor under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; or (e) entry of an order or decree liquidating or dissolving Tenant, Manager or, unless the Guarantor EOD Conditions exist, Guarantor, provided that the same shall not constitute a Tenant Event of Default if (i) such order or decree shall be vacated, set aside or stayed within ninety (90) days from the date of the entry thereof, or (ii) with respect to Manager only, (x) Manager is not an Affiliate of Tenant, or (y) another wholly-owned subsidiary of CEC assumes the MLSA and the other Lease/MLSA Related Agreements to which Manager is a party; (f) Tenant shall fail to cause the Facility to be Operated (as defined in the MLSA) in a Non-Discriminatory (as defined in the MLSA) manner, in accordance with the Operating Standard (as defined in the MLSA) and subject to Manager’s Standard of Care (as defined in the MLSA) (in each case as and to the extent required under the MLSA, including as provided in Section 2.1.1, Section 2.1.2, Section 2.1.3, Section 2.1.4, Section 2.3.1, and Section 2.3.2 of the MLSA, but subject to Section 5.9.1 of the MLSA), which failure would reasonably be expected to have a material and adverse effect on Landlord or on the Facility, and which failure is not cured within thirty (30) days following notice thereof from Landlord to Tenant; provided that, if: (i) such failure is not susceptible of cure within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputation, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) days) to cure such failure so long as Tenant commences to cure such failure or other breach within such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure); (g) the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached in any proceeding relating to more than Twenty-Five Million and No/100 Dollars ($25,000,000.00), and the same shall not be vacated, discharged or stayed pending appeal (or paid or bonded or otherwise similarly secured payment) within the later of ninety (90) days after 100 commencement thereof or thirty (30) days after receipt by Tenant of notice thereof from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law; (h) if Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or more final judgments aggregating in excess of the amount of Seventy-Five Million and No/100 Dollars ($75,000,000.00), which judgments are not discharged or effectively waived or stayed for a period of forty-five (45) consecutive days; (i) unless the Guarantor EOD Conditions exist, a Lease Guarantor Event of Default shall occur under the MLSA; (j) except as a result of a Permitted Operation Interruption, Tenant fails to cause the Facility to be Continuously Operated during the Term; (k) any applicable Gaming License or other license material to the Facility’s operation for its Primary Intended Use is at any time terminated or revoked or suspended or placed under a trusteeship (and in each case such terminationkeep, revocation, suspension or trusteeship causes cessation of Gaming activity at the Facility) for more than thirty (30) days and such termination, revocation, suspension or trusteeship is not stayed pending appeal and would reasonably be expected to have a material adverse effect on Tenant or on the Facility; (l) if a Licensing Event with respect to Tenant under clause (a) of the definition of Licensing Event shall occur and is not resolved in accordance with Section 41.13 within the later of (i) thirty (30) days or (ii) such additional time period as may be permitted by the applicable Gaming Authorities; (m) Tenant fails to comply with any Additional Fee Mortgagee Requirements (and in the case of any representation or warranty made by Tenant under Section 8.2 and Exhibit L having been false or misleading as of the date the representation or warranty was made, such false or misleading representation or warranty has had or is reasonably expected to result in a Material Adverse Effect (as defined in Exhibit L)), which default is not cured within the shortest applicable cure period set forth in the Fee Mortgage Documents (i.e., such default is not cured prior to the same constituting an “Event of Default” under any Fee Mortgage Document), if the effect of such default is to cause, or to permit the holder or holders of the applicable Fee Mortgage (or a trustee or agent on behalf of such holder or holders) to cause, such Fee Mortgage to become or be declared due and payable (or redeemable) prior to its stated maturity (without regard to any standstill or forbearance period that might be provided to Landlord with respect to the same); provided, however, that, if any such standstill or forbearance period shall be provided to Landlord with respect to the same, so long as Tenant is reasonably cooperating with Landlord in connection with a potential refinancing of the defaulted Fee Mortgage(s) by providing information with respect to the Leased Property, Tenant or its Affiliates (excluding (i) any material non-public information, unless the same shall only be provided to potential financing sources in accordance with and subject to Section 41.22 hereof, and (ii) any information subject to bona fide confidentiality restrictions) requested by Landlord in order to satisfy the market standards to which such potential refinancing lenders customarily adhere or 101 which may be reasonably required by prospective investors and/or rating agencies, such default shall not constitute a Tenant Event of Default hereunder for the first half of the shortest applicable standstill or forbearance period so provided to Landlord, as determined by Landlord in its sole but good faith discretion; (n) a transfer of Tenant’s interest in this Lease (including pursuant to a Change in Control) shall have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in default of the provisions set forth in Section 22.1 below; (o) if Tenant shall fail to observe or perform any other term, covenant or condition of this Lease to be kept, observed or performed by Tenant and such failure is continues after Tenant’s receipt of notice of default thereof from Landlord for more than thirty (30) days, provided that if the same cannot be cured within thirty (30) days after written notice thereof from Landlorddays, provided, howeverthen within such additional time, if any, as is reasonably necessary to complete such failure cannot reasonably be cured cure, provided that Tenant has commenced such cure within such the initial thirty (30) day period and diligently pursues such cure to completion, or (iii) Tenant shall have commenced fails to cure maintain the insurance required to be maintained by Tenant pursuant to this Lease and does not secure replacement insurance within ten (10) days after notice of such failure to maintain insurance from Landlord, Landlord’s agent or Tenant’s insurance carrier, or (iv) if there is filed by or against Tenant a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee, or if Tenant makes an assignment for the benefit of creditors or takes advantage of any insolvency act or code, and within such thirty one hundred twenty (30120) day period and days thereafter diligently proceeds Tenant fails to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Tenant in the exercise secure discharge of due diligence to cure such failure, provided that, with respect to any failure to perform (i) that is still continuing on or after the first day of the sixth (6th) Lease Year such cure period shall not extend beyond the later of such first day of the sixth (6th) Lease Year or one-hundred and eighty (180) days in the aggregate, and (ii) that is first arising on or after the first day of the sixth (6th) Lease Year, such cure period shall not exceed one-hundred and eighty (180) days in the aggregate, provided, further however, that no Tenant Event of Default under this clause (o) or under clause (p) below shall be deemed to exist under this Lease during any time the curing thereof is prevented by an Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay, Tenant remedies the default within the time periods otherwise required hereunder; (p) the occurrence of a Tenant Event of Default pursuant to Section 10.5(a)(x); and (q) unless the Guarantor EOD Conditions exist, if Guarantor shall, in any judicial or quasi-judicial case, action or proceeding, contest (or collude with or otherwise affirmatively assist any other Person, or solicit or cause to be solicited any other Person to contest) the validity or enforceability of Guarantor’s obligations under the MLSA (or any Qualified Replacement Guarantor’s obligations under a Replacement Guaranty). Notwithstanding anything contained herein to the contrary, (x) Landlord shall deliver all notices required pursuant to Section 16.1 concurrently to Tenant and Guarantor and (y) a default by Tenant under any Permitted Leasehold Mortgage shall not in and of itself be a Tenant Event of Default hereunder (it being understood that if the circumstances that cause such default independently comprise a default hereunder that continues beyond all applicable notice and cure periods hereunder then such circumstances would cause a Tenant Default hereunder). Notwithstanding the foregoing, (i) Tenant shall not be in breach of this Lease solely as a result of the exercise by the party (other than Tenant, CEC, CEOC or any of their respective Affiliates) to any of the Permitted Exception Documents of such party’s rights thereunder so long as Tenant undertakes commercially reasonable efforts to cause such party to comply or otherwise minimize such breach, and (ii) in the event that Tenant is required, under the express terms of any Permitted Exception Document(s), to take or refrain from taking any action, and taking or refraining from 102 taking such action would result in a default under this Lease, then Tenant shall advise Landlord of the same, and Tenant and Landlord shall reasonably cooperate in order to address the same in a mutually acceptable manner, and so as to minimize any harm or liability to Landlord and to Tenant. For the avoidance of doubt, in no event shall a Permitted Exception Document excuse Tenant from its obligation to pay Rent or Additional Charges. 16.2proceedings.
Appears in 1 contract
Tenant Events of Default. Any Tenant shall be in default under this Lease if any one or more of the following shall constitute a “Tenant events (referred to herein as "Events of Default" or "Event of Default”") shall occur: (a) Tenant if default shall fail to pay any installment of Rent be made in the payment when due of any Rent and such failure is not cured within six default shall continue for five (65) days Business Days after Tenant's receipt of written notice from Landlord (which notice for purposes of this provision may be in the form of an email and shall be deemed effective as of transmittal (without requirement that receipt thereof be acknowledged)such payment was not received when due; provided, provided however, that (without vitiating the effectiveness of such email notice) a separate notice is separately delivered on the same day or, if such day is not a Business Day, on the following Business Day, which separate notice shall be delivered in accordance with Article XXXV (it being understood that the delivery of such separate notice shall not vitiate the effectiveness of such email notice)) of Tenant’s failure Landlord has no obligation to pay such installment of Rent when due (and provide such notice of failure from Landlord may be given and the opportunity to cure more than twice in any time after such installment of Rent is one twenty-four (124) day late)consecutive month period; (b) if default shall be made by Tenant shall fail to pay in the performance of or compliance with any Additional Charge (excluding, for the avoidance of doubt the Minimum Cap Ex Amount) within seven (7) days after written notice from Landlord of Tenant’s failure to pay such Additional Charge when due (and such notice of failure from Landlord may be given any time after such payment of any Additional Charge is one (1) day late); (c) Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall: (i) file a petition in bankruptcy or a petition to take advantage of any insolvency law or statute under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law; 99 (ii) make an assignment for the benefit of its creditors; or (iii) consent to the appointment of a receiver of itself or of the whole or substantially all terms of its property; (d) (i) Tenant shall be adjudicated as bankrupt or a court this Lease other than those referred to in any of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant, a receiver of Tenant or of all or substantially all of Tenant’s property, or approving a petition filed against Tenant seeking reorganization or arrangement of Tenant under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state lawother subparagraphs in this section, and such judgment, order or decree default shall not be vacated or set aside or stayed within sixty (60) days from the date continue for a period of the entry thereof; (i) Unless the Guarantor EOD Conditions exist, Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Guarantor, a receiver of Guarantor or of all or substantially all of Guarantor’s property, or approving a petition filed against Guarantor seeking reorganization or arrangement of Guarantor under Federal law, specifically including Title 00, Xxxxxx Xxxxxx Xxxx, §§ 000-0000, or analogous state law, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof; or (e) entry of an order or decree liquidating or dissolving Tenant, Manager or, unless the Guarantor EOD Conditions exist, Guarantor, provided that the same shall not constitute a Tenant Event of Default if (i) such order or decree shall be vacated, set aside or stayed within ninety (90) days from the date of the entry thereof, or (ii) with respect to Manager only, (x) Manager is not an Affiliate of Tenant, or (y) another wholly-owned subsidiary of CEC assumes the MLSA and the other Lease/MLSA Related Agreements to which Manager is a party; (f) Tenant shall fail to cause the Facility to be Operated (as defined in the MLSA) in a Non-Discriminatory (as defined in the MLSA) manner, in accordance with the Operating Standard (as defined in the MLSA) and subject to Manager’s Standard of Care (as defined in the MLSA) (in each case as and to the extent required under the MLSA, including as provided in Section 2.1.1, Section 2.1.2, Section 2.1.3, Section 2.1.4, Section 2.3.1, and Section 2.3.2 of the MLSA, but subject to Section 5.9.1 of the MLSA), which failure would reasonably be expected to have a material and adverse effect on Landlord or on the Facility, and which failure is not cured within thirty (30) days following after Landlord gives Tenant written notice thereof from Landlord to Tenant; provided that, if: (i) or such failure reasonably longer period of time if such default is not susceptible reasonably incapable of cure being cured within such thirty (30) day period; and (ii) such failure would not expose Landlord to an imminent and material risk of criminal liability or of material damage to its business reputation, such thirty (30) day cure period shall be extended for such time as is necessary (but in no event longer than ninety (90) days) to cure such failure so long as provided that Tenant commences to cure such failure or other breach default within such thirty (30) day period and thereafter proceeds with reasonable diligence to complete such cure)diligently pursues the same until completion; (gc) the estate or interest of if default shall be made by Tenant in the Leased Property performance of or compliance with any part thereof shall be levied upon or attached in any proceeding relating to more than Twenty-Five Million and No/100 Dollars ($25,000,000.00)of the terms of the Repair Escrow Agreement, and the same such default shall not be vacated, discharged or stayed pending appeal (or paid or bonded or otherwise similarly secured payment) within the later continue for a period of ninety (90) days after 100 commencement thereof or thirty (30) days after receipt by Landlord gives Tenant of written notice thereof from Landlord; provided, however, that or such notice shall be in lieu of and not in addition to any notice required under applicable law; (h) if Tenant or, unless the Guarantor EOD Conditions exist, Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or more final judgments aggregating in excess of the amount of Seventy-Five Million and No/100 Dollars ($75,000,000.00), which judgments are not discharged or effectively waived or stayed for a reasonably longer period of forty-five (45) consecutive days; (i) unless the Guarantor EOD Conditions exist, a Lease Guarantor Event of Default shall occur under the MLSA; (j) except as a result of a Permitted Operation Interruption, Tenant fails to cause the Facility to be Continuously Operated during the Term; (k) any applicable Gaming License or other license material to the Facility’s operation for its Primary Intended Use is at any time terminated or revoked or suspended or placed under a trusteeship (and in each case such termination, revocation, suspension or trusteeship causes cessation of Gaming activity at the Facility) for more than thirty (30) days and such termination, revocation, suspension or trusteeship is not stayed pending appeal and would reasonably be expected to have a material adverse effect on Tenant or on the Facility; (l) if a Licensing Event with respect to Tenant under clause (a) of the definition of Licensing Event shall occur and is not resolved in accordance with Section 41.13 within the later of (i) thirty (30) days or (ii) such additional time period as may be permitted by the applicable Gaming Authorities; (m) Tenant fails to comply with any Additional Fee Mortgagee Requirements (and in the case of any representation or warranty made by Tenant under Section 8.2 and Exhibit L having been false or misleading as of the date the representation or warranty was made, such false or misleading representation or warranty has had or is reasonably expected to result in a Material Adverse Effect (as defined in Exhibit L)), which default is not cured within the shortest applicable cure period set forth in the Fee Mortgage Documents (i.e., such default is not cured prior to the same constituting an “Event reasonably incapable of Default” under any Fee Mortgage Document), if the effect of such default is to cause, or to permit the holder or holders of the applicable Fee Mortgage (or a trustee or agent on behalf of such holder or holders) to cause, such Fee Mortgage to become or be declared due and payable (or redeemable) prior to its stated maturity (without regard to any standstill or forbearance period that might be provided to Landlord with respect to the same); provided, however, that, if any such standstill or forbearance period shall be provided to Landlord with respect to the same, so long as Tenant is reasonably cooperating with Landlord in connection with a potential refinancing of the defaulted Fee Mortgage(s) by providing information with respect to the Leased Property, Tenant or its Affiliates (excluding (i) any material non-public information, unless the same shall only be provided to potential financing sources in accordance with and subject to Section 41.22 hereof, and (ii) any information subject to bona fide confidentiality restrictions) requested by Landlord in order to satisfy the market standards to which such potential refinancing lenders customarily adhere or 101 which may be reasonably required by prospective investors and/or rating agencies, such default shall not constitute a Tenant Event of Default hereunder for the first half of the shortest applicable standstill or forbearance period so provided to Landlord, as determined by Landlord in its sole but good faith discretion; (n) a transfer of Tenant’s interest in this Lease (including pursuant to a Change in Control) shall have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in default of the provisions set forth in Section 22.1 below; (o) if Tenant shall fail to observe or perform any other term, covenant or condition of this Lease and such failure is not cured within thirty (30) days after written notice thereof from Landlord, provided, however, if such failure cannot reasonably be being cured within such thirty (30) day period and provided that Tenant shall have commenced commences to cure such failure default within such thirty (30) day period and thereafter diligently proceeds pursues the same until completion; (d) if Tenant shall fail to cure renew the sameLetter of Credit, such thirty or any replacement thereof, at least fourteen (3014) day period days prior to its expiration or termination date; (e) if Tenant shall file a voluntary petition in bankruptcy or shall be extended adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangement, composition or readjustment, or similar relief for such time as is reasonably necessary for Tenant itself under any present or future federal, state or other statute, law or regulation, or shall seek or consent to or acquiesce in the exercise appointment of due diligence to cure such failureany trustee, provided that, with respect to receiver or liquidator of itself or of all or any failure to perform (i) that is still continuing on substantial part of its or after the first day of the sixth property, or shall take any general assignment for the benefit of creditors or shall admit in writing its inability to pay debts generally as they become due; (6thf) Lease Year such cure period if a petition shall not extend beyond the later of such first day of the sixth (6th) Lease Year be filed against Tenant seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or one-hundred and eighty (180) days in the aggregatesimilar relief under any present or future federal, state or other statute, law or regulation, and shall remain undismissed or unstayed for a period of sixty (ii60) that is first arising on days, or after if in connection with any such event any trustee, receiver or liquidator of Tenant, or of all or any substantial part of any of its property, shall be appointed without its consent or acquiescence and such appointment shall remain unvacated or unstayed for a period of sixty (60) days; (g) if Tenant shall abandon the first day of the sixth Premises and fails to continue paying Rent (6th) Lease Year, such cure period shall not exceed one-hundred and eighty (180) days in the aggregate, provided, further however, that no Tenant Event of Default under this clause (o) or under clause (p) below shall be deemed to exist under notwithstanding anything in this Lease during any time the curing thereof is prevented by an Unavoidable Delay, provided that upon the cessation of the Unavoidable Delay, Tenant remedies the default within the time periods otherwise required hereunder; (p) the occurrence of a Tenant Event of Default pursuant to Section 10.5(a)(x); and (q) unless the Guarantor EOD Conditions exist, if Guarantor shall, in any judicial or quasi-judicial case, action or proceeding, contest (or collude with or otherwise affirmatively assist any other Person, or solicit or cause to be solicited any other Person to contest) the validity or enforceability of Guarantor’s obligations under the MLSA (or any Qualified Replacement Guarantor’s obligations under a Replacement Guaranty). Notwithstanding anything contained herein to the contrary, Tenant, may from time to time, either or both reduce or cease business operations in the Premises provided that Tenant otherwise continues to comply with the terms of the Lease, including payment of all Rent as and when due, and such cessation will not be deemed to be either or both a vacation or an abandonment of the Premises); (xh) Landlord if Tenant shall deliver all notices let lapse any of the insurance required pursuant to Section 16.1 concurrently to Tenant and Guarantor and (y) a default by Tenant under any Permitted Leasehold Mortgage shall not in and of itself be a Tenant Event of Default hereunder (it being understood that if the circumstances that cause such default independently comprise a default hereunder that continues beyond all applicable notice and cure periods hereunder then such circumstances would cause a Tenant Default hereunder). Notwithstanding the foregoing, Article X; or (i) Tenant shall not be in breach of this Lease solely as a result if Landlord applies the proceeds of the exercise by the party (other than Tenant, CEC, CEOC or any Letter of their respective Affiliates) to any of the Permitted Exception Documents of such party’s rights thereunder so long as Tenant undertakes commercially reasonable efforts to cause such party to comply or otherwise minimize such breach, and (ii) Credit in the event that Tenant is required, under the express terms of any Permitted Exception Document(s), to take or refrain from taking any action, and taking or refraining from 102 taking such action would result in a default under this Lease, then Tenant shall advise Landlord of the sameaccordance with Section 1.08, and Tenant and Landlord shall reasonably cooperate in order fails, within ten (10) Business Days after written demand, to address replenish the same Letter of Credit in a mutually acceptable manner, and sum equal to the amount so as to minimize any harm or liability to Landlord and to Tenantused. For the avoidance of doubt, in no event shall a Permitted Exception Document excuse Tenant from its obligation to pay Rent or Additional Charges. 16.2Section 7.02
Appears in 1 contract
Samples: Lease Agreement
