NO LATER THAN TEN (10) DAYS PRIOR TO
THE DATE THAT TENANT SHALL MAKE APPLICATION TO A COURT OF COMPETENT JURISDICTION
FOR AUTHORITY AND APPROVAL TO ENTER INTO SUCH ASSIGNMENT AND ASSUMPTION, AND
LANDLORD SHALL THEREUPON HAVE THE PRIOR RIGHT AND OPTION, TO BE EXERCISED BY
NOTICE TO TENANT GIVEN AT ANY TIME PRIOR TO THE EFFECTIVE DATE OF SUCH PROPOSED
ASSIGNMENT, TO ACCEPT AN ASSIGNMENT OF THIS LEASE UPON THE SAME TERMS AND
CONDITIONS AND FOR THE SAME CONSIDERATION, IF ANY, AS THE BONA FIDE OFFER MADE
BY SUCH PERSON, LESS ANY BROKERAGE COMMISSIONS WHICH MAY BE PAYABLE OUT OF THE
CONSIDERATION TO BE PAID BY SUCH PERSON FOR THE ASSIGNMENT OF THIS LEASE.
THE
ADEQUATE ASSURANCE TO BE PROVIDED LANDLORD TO ASSURE THE ASSIGNEE'S FUTURE
PERFORMANCE UNDER THE LEASE SHALL INCLUDE WITHOUT LIMITATION: (A) THE DEPOSIT OF
A SUM EQUAL TO THREE MONTHS' RENT TO BE HELD (WITHOUT ANY ALLOWANCE FOR INTEREST
THEREON) AS SECURITY FOR PERFORMANCE HEREUNDER; AND (B) A WRITTEN DEMONSTRATION
THAT THE ASSIGNEE MEETS ALL REASONABLE FINANCIAL AND OTHER CRITERIA OF LANDLORD
AS DID TENANT AND ITS BUSINESS AT THE TIME OF EXECUTION OF THIS LEASE, INCLUDING
THE PRODUCTION OF THE MOST RECENT AUDITED FINANCIAL STATEMENT OF THE ASSIGNEE
PREPARED BY A CERTIFIED PUBLIC ACCOUNTANT; AND (C) THE ASSIGNEE'S USE OF THE
DEMISED PREMISES WILL BE IN COMPLIANCE WITH THE TERMS OF THIS LEASE; AND
(D) ASSURANCES, IN FORM ACCEPTABLE TO LANDLORD, AS TO ALL MATTERS IDENTIFIED IN
ANY APPLICABLE PROVISION OF THE BANKRUPTCY CODE.
ARTICLE 17
DEFAULT
17.1
EVENTS OF DEFAULT.
This Lease and the Term and estate hereby granted are subject to the limitation
that:
(A)
WHENEVER TENANT SHALL HAVE FAILED TO PAY
ANY INSTALLMENT OF RENT, OR ANY PORTION THEREOF WHEN THE SAME SHALL BE DUE AND
PAYABLE, AND TENANT SHALL HAVE FAILED TO PAY SAME FOR A PERIOD OF FIVE (5)
BUSINESS DAYS AFTER THE DUE DATE OF SUCH PAYMENT ("GRACE PERIOD"), AND FOR AN
ADDITIONAL PERIOD OF FIVE (5) DAYS FOLLOWING THE DATE ON WHICH TENANT RECEIVES
WRITTEN NOTICE OF DEFAULT UNDER THIS SUBSECTION FROM LANDLORD.
LANDLORD SHALL
NOT, HOWEVER, BE REQUIRED TO GIVE TENANT WRITTEN NOTICE MORE THAN TWO TIMES IN
ANY CONSECUTIVE TWELVE (12) MONTH PERIOD OF THE FAILURE TO TIMELY PAY ANY
INSTALLMENT OF RENT; OR
(B)
WHENEVER TENANT SHALL HAVE FAILED TO COMPLY
WITH, SHALL HAVE VIOLATED OR SHALL BE IN DEFAULT IN THE PERFORMANCE OF ANY OTHER
PROVISION OF THIS LEASE AND TENANT SHALL HAVE FAILED TO CURE SUCH DEFAULT WITHIN
30 DAYS AFTER WRITTEN NOTICE FROM LANDLORD OF SUCH NONCOMPLIANCE, VIOLATION OR
DEFAULT (IN THE CASE OF A DEFAULT WHICH CANNOT WITH DUE DILIGENCE BE CURED
WITHIN A PERIOD OF 30 DAYS, TENANT SHALL HAVE SUCH ADDITIONAL TIME TO CURE SAME
AS MAY REASONABLY BE NECESSARY, PROVIDED TENANT COMMENCES CURING SUCH DEFAULT
WITHIN THE 30 DAY PERIOD AND PROCEEDS PROMPTLY, EFFECTIVELY, CONTINUOUSLY AND
WITH DUE DILIGENCE TO CURE SUCH DEFAULT AFTER DELIVERY OF SAID NOTICE); OR
(C)
WHENEVER TENANT SHALL ABANDON THE DEMISED
PREMISES