- 28 -
id.; see also Herbel v. Commissioner, 106 T.C. 392, 416-417
(1996), affd. 129 F.3d 788 (5th Cir. 1997). On the record before
us, we find that petitioner had “some guarantee” that, for each
annual period covered by the April 16, 1999 supply agreement and
the corresponding April 15, 1999 note, it would be allowed to
keep the amount of the annual payment set forth in that note as
long as, for each such period, it lived up to its end of the
bargain by not materially breaching the April 16, 1999 supply
agreement.21 See Commissioner v. Indianapolis Power & Light Co.,
20(...continued)
trative agency of competent jurisdiction for the ap-
pointment of a receiver or trustee for the administra-
tion of the affairs of the Retailer, if an order for
relief shall be entered and continued unstayed in
effect for thirty (30) days or such petition or appli-
cation shall continue undismissed for sixty (60) days;
(iv) following the breach of any obligation of the
Retailer hereunder, if such breach is not cured within
thirty (30) days following notice thereof to the
breaching party; (v) following the default by Retailer
in the performance of or compliance with any material
contract, instrument or agreement, including, without
limitation, any lease of real property, any material
lease of personal property or any promissory note,
instrument or agreement evidencing or in respect of any
indebtedness for borrowed money or any security there-
for, if such default is not cured within any applicable
period of grace, or (vi) immediately upon the occur-
rence of a material adverse change in the condition
(financial or otherwise), business or prospects of the
Retailer or any guarantor of the Retailer’s liabilities
and obligations hereunder. * * *
21On the record before us, we reject petitioner’s contention
that if Super Rite had commenced a bankruptcy proceeding, peti-
tioner would have been in default under the April 16, 1999 supply
agreement. Pursuant to the April 16, 1999 supply agreement, the
(continued...)
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