LEASE, THE AMOUNT OF RENT RESERVED UPON SUCH RELETTING SHALL PRIMA FACIE BE
THE FAIR AND REASONABLE RENTAL VALUE FOR THE PART OR THE WHOLE OF THE PREMISES
SO RELET DURING THE TERM OF THE RELETTING.
(C)
IF TENANT ASSUMES THIS LEASE AND PROPOSES TO ASSIGN THE SAME PURSUANT TO
THE PROVISIONS OF THE BANKRUPTCY CODE TO ANY PERSON, FIRM OR CORPORATION WHO
SHALL HAVE MADE ITS BONA FIDE OFFER TO ACCEPT AN ASSIGNMENT OF THIS LEASE ON
TERMS ACCEPTABLE TO TENANT, THEN NOTICE OF SUCH PROPOSED ASSIGNMENT SHALL BE
GIVEN TO LANDLORD BY TENANT NO LATER THAN THIRTY (30) DAYS AFTER RECEIPT BY
TENANT, BUT IN ANY EVENT NO LATER THAN TWENTY (20) 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.
SUCH NOTICE SHALL
SET FORTH (I) THE NAME AND ADDRESS OF SUCH PERSON, FIRM OR CORPORATION, (II) ALL
OF THE TERMS AND CONDITIONS OF SUCH OFFER, AND (III) ADEQUATE ASSURANCE OF
FUTURE PERFORMANCE BY SUCH PERSON, FIRM OR CORPORATION UNDER THE LEASE AS SET
FORTH IN SECTION 17(D) HEREOF, INCLUDING, WITHOUT LIMITATION, THE ASSURANCE
REFERRED TO IN SECTION 365(B) (3) OF THE BANKRUPTCY CODE.
LANDLORD SHALL 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, FIRM OR
CORPORATION LESS ANY BROKERAGE COMMISSIONS WHICH WOULD OTHERWISE BE PAYABLE BY
TENANT OUT OF THE CONSIDERATION TO BE PAID BY SUCH PERSON, FIRM OR CORPORATION
IN CONNECTION WITH THE ASSIGNMENT OF THIS LEASE.
(D)
THE TERM "ADEQUATE ASSURANCE OF FUTURE PERFORMANCE," AS USED IN THIS
LEASE, SHALL MEAN THAT ANY PROPOSED ASSIGNEE SHALL, AMONG OTHER THINGS: (A)
DEPOSIT WITH LANDLORD ON THE ASSUMPTION OF THIS LEASE THE SUM OF THE THEN ANNUAL
RENT AND IMPOSITIONS FOR SIX (6) MONTHS (TOGETHER, THE "BASE ANNUAL RENT") AS
SECURITY FOR THE FAITHFUL PERFORMANCE AND OBSERVANCE BY SUCH ASSIGNEES OF THE
TERMS AND OBLIGATIONS OF THIS LEASE, WHICH SUM SHALL BE HELD BY LANDLORD IN
15
A SEGREGATED, INTEREST-BEARING ESCROW ACCOUNT; (B) FURNISH LANDLORD WITH
FINANCIAL STATEMENTS OF SUCH ASSIGNEE FOR THE PRIOR THREE (3) FISCAL YEARS, AS
FINALLY DETERMINED AFTER AN AUDIT AND, CERTIFIED AS CORRECT BY A CERTIFIED
PUBLIC ACCOUNTANT, WHICH FINANCIAL STATEMENTS SHALL SHOW A NET WORTH OF AT LEAST
TEN (10) TIMES THE THEN BASE ANNUAL RENT FOR EACH OF SUCH THREE (3) YEARS; (C)
GRANT TO LANDLORD A SECURITY INTEREST IN SUCH PROPERTY OF THE PROPOSED ASSIGNEE
AS LANDLORD SHALL DEEM NECESSARY TO SECURE SUCH ASSIGNEE'S FUTURE PERFORMANCE
UNDER THIS LEASE; AND (D) PROVIDE SUCH OTHER INFORMATION OR TAKE SUCH ACTION AS
LANDLORD, IN ITS REASONABLE JUDGMENT, SHALL DETERMINE IS NECESSARY TO PROVIDE
ADEQUATE ASSURANCE OF THE PERFORMANCE BY SUCH ASSIGNEE OF ITS OBLIGATIONS