MASTER LOAN AND SECURITY AGREEMENT

 

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                                                                    Exhibit 10.9

 

                       MASTER LOAN AND SECURITY AGREEMENT

 

NO. 7700                                                  DATED: DECEMBER 17,1999

 

LENDER:                                         CUSTOMER:

   OXFORD VENTURE FINANCE, LLC                    ALTUS BIOLOGICS, INC.

   A Virginia Limited Liability Corporation       a Massachusetts corporation

 

Address                                        Address:

   133 North Fairfax Street                       625 Putnam Avenue

   Alexandria, Virginia 22314                     Cambridge, MA 02139

 

     In consideration of each Loan Agreement, Customer hereby agrees with Lender

that, whenever Customer shall be at any time or times directly or contingently

indebted, liable or obligated to Lender in any manner whatsoever, Lender shall

have the following rights:

 

     1. DEFINITIONS. To the extent not otherwise specifically defined in this

Agreement, unless the context otherwise requires, all other terms contained in

this Agreement shall have the meanings assigned or referred to them in the UCC.

The following terms shall have the following meanings:

 

     "Acceptance Date" with respect to each item of Equipment shall have the

meaning Assigned to such term in Section 3 of this Agreement.

 

     "Affiliate" shall mean, with respect to any person, firm or entity, any

other person, firm or entity controlling, controlled by, or under common control

with such person, firm or entity; for the purposes hereof "control" shall mean

the possession, directly or indirectly, of the power to direct or cause the

direction of the management and policies of any such person, firm or entity,

whether through the legal or beneficial ownership of voting securities, by

contract or otherwise.

 

     "Agreement" shall mean this Master Loan and Security Agreement, as amended

or modified from time to time.

 

     "Attorneys' Fees and Expenses" shall mean all reasonable attorneys' fees

and legal costs and expenses (including, without limitation, those fees, costs

and expenses incurred in connection with bankruptcy proceedings, including

Relief from Stay Motions, Cash Collateral Motions and disputes concerning any

proposed disclosure statement and/or bankruptcy plan).

 

     "Collateral" shall mean all Equipment and any licenses, trademarks or other

tangible or intangible property ancillary to the Equipment and all products,

proceeds, gents and profits therefrom or thereof including proceeds in the form

of goods, accounts, chattel paper, documents, instruments and insurance

proceeds.

 

     "Default" shall have the meaning ascribed to such term is Section 8 of this

Agreement

 

     "Equipment" shall mean one or more items or units of personal property now

owned or hereafter acquired by Customer, as described in each Equipment

Schedule, wherever the same

 

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may be located, including all present and future additions, attachments,

accessions and accessories thereto and all replacements, substitutions and a

right to use license for any software related to any of the foregoing and

proceeds thereof, including all proceeds of insurance thereon.

 

     "Equipment Schedule" shall mean each Equipment Schedule, which incorporates

by reference the terms and conditions of this Agreement and describes one or

more items of Equipment and specific terms and conditions with respect thereto.

 

     "Event of Default" shall have the meaning ascribed to such term in Section

8 of this Agreement.

 

     "Loan Agreement" shall mean the applicable Equipment Schedule incorporating

the terms and conditions of this Agreement, including all exhibits, addenda,

schedules, certificates, riders and all other documents and instruments executed

and delivered in connection with the applicable Equipment Schedule or this

Master Loan and Security Agreement.

 

     "Note" shall mean a promissory note of Customer in favor of Lender

evidencing Customer's obligations to Lender with respect to a Loan Agreement.

 

     "Obligations" shall mean all liabilities, absolute or contingent, joint,

several or independent, of Customer or any Affiliate of Customer now or

hereafter existing, due or to become due to, or held or to be held by, Lender

for its own account or as agent for another or others, whether created directly

or acquired by assignment or otherwise and howsoever evidenced, including,

without limitation, the Loan Agreement, and all interest, taxes, fees, charges,

expenses and Attorneys' Fees and Expenses chargeable to Customer or incurred by

Lender under the Loan Agreement, or any other document or instrument delivered

in connection herewith.

 

     "Person" shall mean any individual, partnership, joint venture, firm,

corporation, association, trust, or other enterprise or any government or

political subdivision, or any agency, department or instrumentality thereof.

 

     "Security Deposit" with respect to each item of Equipment shall have the

meaning assigned to such term in the Equipment Schedule applicable to such item

of-Equipment.

 

     "UCC" shall mean the Uniform Commercial Code as enacted in the State of

Connecticut.

 

     2. INDEPENDENT LOAN; CROSS-COLLATERALIZATION; SECURITY INTEREST. Each

Equipment Schedule shall constitute a separate, distinct and independent Loan

Agreement and contractual obligation of Customer. As security for the due and

punctual payment of any and all of the present and future Obligations of

Customer to Lender, Customer hereby grants to Lender with respect to each Loan

Agreement and for the full amount of all Obligations, a security interest in all

of the Collateral and all collateral securing any other lease or security

agreement between Customer and Lender, whether now in existence or hereafter

entered into. The extent to which Lender's security interest in any item of

Collateral shall be entitled to purchase money priority shall be determined by

reference to the unpaid principal balance of any Note evidencing the financing

of the purchase price of such item of Equipment.

 

 

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     3. ACCEPTANCE OF EQUIPMENT. The Equipment is to be delivered and installed

at the location specified or referred to in the applicable Equipment Schedule.

The Equipment shall be deemed to have been accepted by Customer for all purposes

under this Agreement upon Customer's execution of an Equipment Schedule (the

"Acceptance Date"). Customer shall not be liable or responsible for any failure

or delay in the delivery of the Equipment to Customer for whatever reason.

 

     4. TERM; PRINCIPAL AND INTEREST; NO PREPAYMENT; LATE CHARGES. The term for

any Loan Agreement shall be as specified in the applicable Equipment Schedule.

No Loan Agreement is prepayable by Customer, in whole or in part, without the

express written consent of Lender in its sole discretion. Principal and interest

payments shall be in the amounts and shall be due and payable as set forth in

the applicable Equipment' Schedule. If any payment of Principal or interest or

other amount payable hereunder shall not be paid within 5 days of the crate when

due, Customer shall pay as an administrative and late charge an amount equal to

5% of the amount of any such overdue payment. In addition, Customer shall pay

overdue interest on any delinquent payment or other amounts due under any Loan

Agreement (by reason of acceleration or otherwise) from the due date until paid

at the rate of one and one-half percent (1.5%) per month or the maximum amount

permitted by applicable law, whichever is lower. All payments to be made to

Lender shall be made to Lender in immediately available funds at the address

shown above, or at such other place, as Lender shall specify in writing.

 

     5. REPRESENTATIONS, WARRANTIES AND COVENANTS. Customer hereby represents

and warrants to and covenants with Lender (provided that if Customer is an

individual or sole proprietorship, the representations, warranties and covenants

relating to corporate status shall not apply) that, as of the date hereof and

for so long as any Obligations shall remain outstanding:

 

     (a) Customer is duly organized and is existing in good standing under the

laws of its jurisdiction of organization and is duly qualified and in good

standing is those jurisdictions where the conduct of its business or the

ownership of its properties requires qualification;

 

     (b) Customer has the power and authority to own the Collateral, to enter

into and perform this Agreement and any other document or instrument delivered

in connection herewith and to incur the Obligations;

 

     (c) Customer's chief executive office is located at the address set forth

above;

 

     (d) Customer does not utilize, and has not in the last five years utilized,

any trade names in the conduct of its business except as set forth on Schedule 1

hereto;

 

     (e) Customer has not changed its name, been the surviving entity in a

merger, acquired any business or changed the location of its chief executive

office within the previous five years, except as set forth on Schedule 2 hereto;

 

     (f) Neither the execution, delivery or performance by Customer of the Loan

Agreement nor compliance by it with the teams and provisions hereof, nor the

consummation of the transactions contemplated herein, (i) will contravene, any

applicable provision of any law, statute, rule or regulation, or any order,

writ, injunction or decree of any court or governmental

 

 

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instrumentality, (ii) will conflict or be inconsistent with or result in any

breach of any of the terms, covenants, conditions or provisions of, or

constitute a default under, or result in any lien upon any property, pursuant to

the terms of any indenture, mortgage, deed of trust, loan agreement or any other

material agreement or instrument to which Customer is a party or by which it or

any of its property or assets are bound or to which it may be subject or (iii)

will violate any provision of its Certificate of Incorporation or By-Laws, or

other governance documents;

 

     (g) The Loan Agreement, the Note and any document or instrument delivered

in connection herewith and the transactions contemplated hereby or thereby are

duly authorized, executed and delivered, and the Loan Agreement, the Note and

such other documents and instruments constitute valid and legally binding

obligations of Customer and are enforceable against Customer in accordance with

their respective terms;

 

     (h) No order, consent, approval, license, authorization, or validation of,

or filing, recording or registration with, or exemption by any governmental or

public body or authority, or any subdivision thereof is required to authorize or

required in connection with (i) the grant by, Customer of the security interest

in connection, with the Loan Agreement, (ii) the execution, delivery and

performance of the Loan. Agreement, (iii) the legality, validity, binding effect

or enforceability of the Loan Agreement or (iv) the perfection or maintenance of

the aforementioned lien and security interest;

 

     (i) Customer has filed all federal, state and local tax returns and other

reports it is required to file, has paid or made adequate provision for payment

of all such taxes, assessments and other governmental charges, and shall pay or

deposit promptly when due all sales, use, excise, personal property, income,

withholding, corporate, franchise and other takes, assessments and governmental

charges upon or relating to the manufacture, purchase, ownership, maintenance,

modification, delivery, installation, possession, condition, use, acceptance,

rejection, operation or return of the Equipment and, upon request by Lender,

Customer will submit to Lender proof satisfactory to Lender that such payments

and/or deposits have been made;

 

     (j) There are no pending or threatened actions or proceedings before any

court or administrative agency, as unfavorable resolution of which could have a

material adverse effect on Customer's financial condition or operations;

 

     (k) No representation, warranty or statement by Customer contained in the

Loan Agreement or in any certificate or other document furnished or to be

furnished by Customer pursuant to the Loan Agreement contains or at the time of

delivery shall contain any untrue statement of material fact, or omits, or shall

omit at the time of delivery, to state a material, fact necessary to make it not

misleading,

 

     (l) All financial statements delivered and to be delivered by Customer to

Lender in connection with. the execution and delivery of the Loan Agreement are

true and correct in all material respects and have been prepared m accordance

with generally accepted accounting principles, and at all times since the elate

of the most recent financial statements, there has been no material change in

Customer's financial affairs or business operations. Customer shall

 

 

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furnish Lender: (1) within 90 days after the last day of each fiscal year of

Customer, a financial statement including a balance sheet, income statement,

statement of retained earnings and statement of cash flows, each prepared in

accordance with generally accepted accounting principles consistently applied

with a report signed by an independent certified public accountant satisfactory

to Lender; (ii) upon the request of Lender, within 45 days after the close of

each quarter of each fiscal year of Customer, financial statements similar to

those described in the immediately preceding clause, prepared by Customer and

certified by the chief financial officer of Customer, Cut) promptly upon the

request pf Lender, such tax returns or financial statements regarding any

guarantor of the Obligations or any Affiliate of Customer as Lender may

reasonably request from time to time; (iv) promptly upon request of Lender, in

form satisfactory to Lender, such other and additional information as Lender may

reasonably request from time to time, and; (v) promptly inform Lender of any

Defaults (defined below) or any events or changes in the financial condition of

Customer occurring since the date of the last financial statements of Customer

delivered to Lender which, individually or cumulatively, when viewed in light of

prior financial statements, may result in a material adverse change in the

financial condition of Customer;

 

     (m) Customer shall permit Lender, through its authorized attorneys,

accountants and representatives, to inspect and examine the Equipment and the

books, accounts, records, ledgers and assets of every kind and description of

Customer with respect thereto at all reasonable tunes; provided, however, that

the failure of Lender to inspect the Equipment or to inform Customer of any

noncompliance shall not relieve Customer of any of its Obligations hereunder;

 

     (n) Customer is the owner of the Equipment free and clear of all rights,

title, security interests, encumbrances or liens of any other party, will defend

the Equipment against all claims and demands of all persons at any time claiming

any interest therein and shall deliver to Lender any and all evidence of

ownership of, and certificates of title to, any and all of the Equipment;

 

     (o) The Equipment is personal property and not a fixture under the law of

the jurisdiction in which the Equipment is located even though the Equipment may

hereafter become attached or affixed to real property,

 

     (p) Each site where Equipment is located, if not owned by Customer, is

leased by Customer pursuant to a valid lease or rental agreement which permits

the possession, use and operation of the Equipment at such location;

 

     (q) Customer shall provide Lender with disclaimers and waivers from

landlord, mortgagees and other persons holding any interest or claim in and to

any premises where Equipment is located, acceptable in, all respects to Lender,

which may be necessary or advisable in the sole discretion of Lender to confirm

that the first priority security interest and rights of Lender in the Equipment

are and will remain valid and superior against all other parties;

 

     (r) The Equipment is in the possession of Customer at the location(s)

specified in the applicable Equipment Schedule, and shall not be removed from

such location without the prior written consent of Lender, which consent shall

in any event be conditioned upon Customer having completed all notifications,

filings, recordings, and other actions in such new location as Lender may

require to protect and perfect Lender's interests in the Collateral;

 

 

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     (s) Customer shall not, without the prior written consent of Lender, sell,

offer to sell, lease, rent, hire or in any other manner dispose, transfer or

surrender use and possession of any Equipment;

 

     (t) customer will not, directly or indirectly, create, incur or permit to

exist any lien, encumbrance, mortgage, pledge, attachment or security interest

on or with respect to the Equipment other than in connection with the execution

and delivery of the Loan Agreement and a subordinate lien in favor of

TransAmerica Business Credit Corporation;

 

     (u) Customer shall permit each item of Equipment to be used only within the

continental United States by qualified personnel solely for business purposes

and the purpose for which it was designed and, at its sole expense, shall

service, repair, overhaul and maintain each item of Equipment in the same

condition as when received, ordinary wear and tear excepted, in good operating

order, consistent with prudent industry practice (but, in no event less than the

same extent to which Customer maintains other similar equipment in the prudent

management of its assets and properties) and in compliance with all applicable

laws, ordinances, regulations, and conditions of all insurance policies required

to be maintained by Customer under the Loan Agreement and all manuals, orders,

recommendations, instructions and other written requirements as to the repair

and maintenance of such item of Equipment issued at any time by the vendor

and/or manufacturer thereof;

 

     (v) if any item of Equipment does not comply with the requirements of the

Loan Agreement, Customer shall bring such Equipment into compliance with the

provisions hereof, and Customer shall not use any Equipment, nor allow the same

to be used, for any unlawful purpose;

 

     (w) Customer acknowledges that Lender has not selected, manufactured or

supplied the Equipment to Customer and has acquired day Equipment subject hereto

solely in connection with this Loan Agreement and Customer has received and

approved the terms, of any purchase order or agreement with respect to the

Equipment, and

 

     (x) Customer has all material permits, licenses and other authorizations

which are required with respect to its business under Environmental Laws (as

defined below) and is in material compliance with all terms and conditions of

such permits, licenses and other authorizations, including all limitations,

restrictions, standards, prohibitions, requirements, obligations, schedules and

timetables. The Customer is not presently in violation of any Environmental

Laws. "Environmental Laws" shall mean any Federal, state or local law relating

to releases or threatened releases of Hazardous Substances; the manufacture,

handling, transport, use, treatment, storage or disposal of Hazardous Substances

or materials containing Hazardous Substances; or otherwise relating to pollution

of the environment or the protection of human health. "Hazardous Substances"

shall mean substances or materials which contain substances defined in or

regulated as toxic or hazardous materials, chemicals, substances, waste or

pollutants under any present or future Federal statutes and their state

counterparts, as well as any implementing regulations as amended from time to

time and as interpreted by administering agencies.

 

 

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     6. DISCLAIMER OF WARRANTIES; LIMITATION OF REMEDY; LIMITATION OF LIABILITY.

Customer selected both the Equipment and the supplier (identified in the

Equipment Schedule, herein ("Supplier") from whom Customer agrees to purchase

the Equipment. CUSTOMER ACKNOWLEDGES THAT LENDER HAS NO SPECIAL FAMILIARITY OR

EXPERTISE WITH RESPECT TO THE EQUIPMENT. CUSTOMER AGREES THAT THE EQUIPMENT IS

"AS IS" AND IS OF A SIZE, DESIGN AND CAPACITY SELECTED BY CUSTOMER AND THAT

CUSTOMER IS SATISFIED THAT THE SAME IS SUITABLE FOR CUSTOMER'S PURPOSES, AND

THAT EXCEPT AS MAY OTHERWISE BE SPECIFICALLY PROVIDED HEREIN OR IN THE EQUIPMENT

SCHEDULE, LENDER HAS MADE NO REPRESENTATION OR WARRANTY AS TO ANY MATTER

WHATSOEVER. LENDER DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY WAVES AS TO LENDER,

ALL WARRANTIES WITH RESPECT TO THE EQUIPMENT INCLUDING BUT NOT LIMITED TO ALL

EXPRESS OR IMPLIED WARRANTS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR

PURPOSE, QUALITY, CAPACITY, OR WORKMANSHIP, ALL EXPRESS OR IMPLIED WARRANTIES

AGAINST PATENT INFRINGEMENTS OR DEFECTS, WHETHER. HIDDEN OR APPARENT, AND ALL

EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO COMPLIANCE OF THE EQUIPMENT WITH

THE REQUIREMENTS OF ANY LAW, REGULATION, SPECIFICATION OR CONTRACT RELATIVE

THERETO. IN NO EVENT SMALL LENDER BE LIABLE (INCLUDING WITHOUT LIMITATION, UNDER

ANY THEORY IN TORTS) FOR ANY LOSS OF USE, REVENUE, ANTICIPATED PROFITS OR

SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN

CONNECTION WITH THE LOAN OR THE USE, PERFORMANCE OR MAINTENANCE OF THE

EQUIPMENT. If the Equipment is not properly installed, does not operate as

represented or warranted by the Supplier, manufacturer and/or service company or

is unsatisfactory for any reason, Customer shall make any claim on account

thereof solely against the Supplier, manufacturer and/or service company and

shall, nevertheless, pay Lender all amounts payable under the Loan Agreement and

any such claims shall not act as a defense, counterclaim, deduction, setoff or

otherwise limit Customer's Obligations under the Loan Agreement.

 

     7. RISK OF LOSS AND DAMAGE; INSURANCE. Customer assumes all risk of loss,

damage or destruction to the Equipment from whatever cause and for whatever

reason. If all or a portion of an item of Equipment shall become lost, stolen,

destroyed, damaged beyond repair or rendered permanently unfit for use for any

reason, or in the event of any condemnation, confiscation, theft or seizure or

requisition of title to or use of such item of Equipment, Customer shall

immediately pay to Lender an amount equal to the outstanding principal balance

of and accrued and unpaid interest on any Note with respect to such Equipment,

less the net amount of the recovery, if any, received by Lender from insurance

on the Equipment. For so long as any Obligations shall remain outstanding,

Customer shall procure and maintain insurance in such amounts and with such

coverages, and upon such terms and with such companies, as Lender may approve,

at Customer's expense; provided, however, that in no event shall such insurance

be less than the following coverages and amounts: (a) Worker's Compensation and

Employer's Liability Insurance, in the full statutory amounts provided by law;

(b) Comprehensive General Liability Insurance including product/completed

operations and contractual liability coverage, with minimum limits on a per

occurrence basis, as reasonably required by Lender, and Combined Single Limit

Bodily Injury and Property Damage on an aggregate basis, as reasonably required

 

 

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by Lender or, in either case, as otherwise specified in any Equipment Schedule

hereto; and (c) All Risk Physical Damage Insurance, including earthquake and

flood, on each item of Equipment, is an amount not less than the greater of (i)

the outstanding principal balance owing under any Note with respect to such

Equipment; or (ii) its full replacement value. Customer shall cause Lender to be

included as an additional insured on each such Comprehensive General Liability

Insurance policy. On each such All Risk Physical Damage Insurance policy Lender

shall be named as loss payee. Such policies shall be endorsed to provide that

the coverage afforded to Lender shall not be rescinded, impaired or invalidated

by any act or neglect of Customer. Customer agrees to waive Customer's rights

and its insurance carrier's rights of subrogation against Leader for any and all

loss or damage. In addition to the foregoing minimum insurance coverage,

Customer shall procure and maintain such other insurance coverage as Lender may

reasonably require. All policies shall be endorsed or contain a clause requiring

the insurer to furnish Lender with at least 30 days prior written notice of any

material change, cancellation or non renewal of coverage. Upon execution of this

Agreement, and thereafter, 30 days prior to the expiration of each insurance

policy inquired hereunder, Customer shall furnish Lender with a certificate of

insurance or other evidence satisfactory to Lender that the insurance coverages

required under such policy are and will continue in effect, provided, however,

that Lender shall be under no duty either to ascertain the existence of or to

examine such insurance coverage or to advise Customer in the event such

insurance coverage should not comply with the requirements hereof if Customer

shall at any time or times hereafter fail to obtain and/or maintain any of the

policies of insurance required herein, or fail to pay any premiums in whole or

in part relating to any such policies, Lender may, but shall not be obligated

to, obtain and/or cause to be maintained insurance coverage with inspect to the

Collateral, including, at Lender's option, the coverage provided by all or any

of the policies of Customer and pay all or any part of the premium therefor,

without waiving any Event of Default by Customer, and any sums so disbursed by

Lender shall be additional Obligations of Customer to Lender payable on demand.

If there exists an Event of Default, Lender shall have the right to settle and

compromise any and all claims under any of the All Disk Physical Damage policies

required to be maintained by Customer hereunder and Customer hereby appoints

Lender as its attorney-in-fact, with power to demand, receive and receipt for

all monies payable thereunder, to execute in the name of Customer or Lender or

both any proof of loss, notice, draft or other instruments in connection with

such policies or any loss thereunder and generally to do and perform any and all

acts as Customer, but for this appointment, might or could perform.

 

     8. EVENTS OF DEFAULT. An "Event of Default" under this Agreement shall be

deemed to have occurred upon the occurrence or existence of any one or more of

the following events or conditions (each a "Default') and after the giving of

any required notice or the passage of any required period of time (or both)

specified below with respect to such Default: (a) Customer shall fail to make

any payment due under any Note or as required under the Loan Agreement within S

days of its due date; or (b) Customer shall fail to obtain or maintain any of

the insurance required under the Loan Agreement; or (c) Customer shall remove,

sell, transfer, encumber, or part with possession of any Equipment; (d) Customer

shall fail to perform or observe any other covenant, condition or agreement

under the Loan Agreement, and such failure shall continue for 20 days after

notice thereof to Customer, or (e) Customer shall default in the payment or

performance of any Obligation owing to Lender, and such default shall continue

for 20 days after notice thereof to Customer, or (f) any representation or

warranty made by Customer herein or in any certificate, agreement, statement or

document heretofore or hereafter furnished

 

 

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Lender, including without limitation any financial information disclosed to

Lender, shall prove to be false or incorrect in any material respect; or (g)

death or judicial, declaration of incompetence of Customer, if an individual; or

(h) the commencement of any bankruptcy, insolvency, arrangement, reorganization,

receivership, liquidation or other similar proceeding by or against Customer or

any of its properties or businesses, or the appointment of a trustee, receiver,

liquidator or custodian for Customer or any of its properties or businesses, or

if Customer suffers the entry of an order for relief under Title 1.1 of the

United States Code; or (i) the making by Customer of a general assignment or

deed of trust for the benefit of creditors; or (j) Customer shall default in any

payment or other material obligation to any other lender and such lender has

accelerated the debt in accordance with its terms; or (k) Customer shall merge

with or consolidate into any other entity or sell all or substantially all of

its assets or, in any manner terminate its existence; or (l) if Customer is a

privately held corporation, more thane 50% of Customer's voting capital stock,

or effective control of Customer's voting capital stock, issued and outstanding

from time to time, is not retained by the holders of such stack on the date the

Loan Agreement is executed; or (m) if Customer is a publicly held corporation,

there shall be a change in the ownership of Customer's stock such that Customer

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; or (n) Lender shall determine that

there has been a material adverse change in the financial condition or business

operations of Customer since the date of the execution of the Loan Agreement, or

that Customer's ability to perform its obligations is materially impaired; or

(o) if Customer leases the premises where any Equipment is located a breach by

Customer of any such lease and the commencement of an action by the landlord to

evict Customer or to r