OR THE DEBTOR-IN-POSSESSION SHALL ALSO PAY IN ADVANCE,
ON EACH DAY THAT ANY INSTALLMENT OF BASE RENT IS PAYABLE, ONE-TWELFTH (1/12) OF
TENANT'S ANNUAL TAXES, OPERATING EXPENSES, AND OTHER OBLIGATIONS UNDER THIS
LEASE; AND
(4)
THE OBLIGATIONS IMPOSED UPON THE TRUSTEE OR
THE DEBTOR-IN-POSSESSION WILL CONTINUE FOR TENANT AFTER THE COMPLETION OF
BANKRUPTCY PROCEEDINGS.
(IV)
LANDLORD HAS DETERMINED THAT THE ASSUMPTION OF
THIS LEASE WILL NOT:
(1)
BREACH ANY PROVISION IN ANY OTHER LEASE,
MORTGAGE, FINANCING AGREEMENT, OR OTHER AGREEMENT BY WHICH LANDLORD IS BOUND
RELATING TO THE PROPERTY OR PROJECT IN WHICH THE PREMISES IS LOCATED; OR
(2)
DISRUPT, IN LANDLORD'S
JUDGEMENT, THE TENANT MIX OF THE OR PROJECT OR ANY OTHER ATTEMPT BY LANDLORD TO
PROVIDE A SPECIFIC VARIETY OF TENANTS IN THE PROJECT WHICH, IN LANDLORD'S
JUDGEMENT, WOULD BE MOST BENEFICIAL TO ALL OF THE TENANTS THEREOF AND WOULD
ENHANCE THE IMAGE, REPUTATION, AND PROFITABILITY THEREOF.
(V)
FOR PURPOSES OF THIS SUBPARAGRAPH (B),
"ADEQUATE ASSURANCE" MEANS THAT:
(1)
LANDLORD DETERMINES THAT THE TRUSTEE OR THE
DEBTOR-IN-POSSESSION HAS, AND WILL CONTINUE TO HAVE, SUFFICIENT UNENCUMBERED
ASSETS, AFTER THE PAYMENT OF ALL SECURED OBLIGATIONS AND ADMINISTRATIVE
EXPENSES, TO ASSURE LANDLORD THAT THE TRUSTEE OR THE DEBTOR-IN-POSSESSION WILL
HAVE SUFFICIENT FUNDS TIMELY TO FULFILL TENANT'S OBLIGATIONS UNDER THIS LEASE
AND TO KEEP THE PREMISES PROPERLY STAFFED WITH SUFFICIENT EMPLOYEES TO CONDUCT A
FULLY OPERATIONAL, ACTIVELY PROMOTED BUSINESS IN THE PREMISES; AND
(2)
AN ORDER SHALL HAVE BEEN
ENTERED SEGREGATING SUFFICIENT CASH PAYABLE TO LANDLORD AND/OR A VALID AND
PERFECTED FIRST LIEN AND SECURITY INTEREST SHALL HAVE BEEN GRANTED IN PROPERTY
OF TENANT, TRUSTEE, OR DEBTOR-IN-
9
POSSESSION WHICH IS ACCEPTABLE IN VALUE AND KIND TO LANDLORD, TO SECURE TO
LANDLORD THE OBLIGATION OF THE TRUSTEE OR DEBTOR-IN-POSSESSION TO CURE ALL
MONETARY AND NONMONETARY DEFAULTS UNDER THIS LEASE WITHIN THE TIME PERIODS SET
FORTH ABOVE.
(C)
IN THE EVENT THIS LEASE IS ASSUMED BY A
TRUSTEE APPOINTED FOR TENANT OR BY TENANT AS DEBTOR-IN-POSSESSION UNDER THE
PROVISIONS OF SUBPARAGRAPH (B) ABOVE AND, THEREAFTER, TENANT IS EITHER
ADJUDICATED BANKRUPT OR FILES A SUBSEQUENT PETITION FOR ARRANGEMENT UNDER
CHAPTER 11 OF THE BANKRUPTCY CODE, THEN LANDLORD MAY, AT ITS OPTION, TERMINATE
THIS LEASE AND ALL THE TENANT'S RIGHTS UNDER IT, BY GIVING WRITTEN NOTICE OF
LANDLORD'S ELECTION SO TO TERMINATE.
(D)
IF THE TRUSTEE OR THE DEBTOR-IN-POSSESSION
HAS ASSUMED THIS LEASE, PURSUANT TO SUBPARAGRAPH (A) OR (B) ABOVE, TO ASSIGN OR
TO ELECT TO ASSIGN TENANT'S INTEREST UNDER THIS LEASE OR THE ESTATE CREATED BY
THAT INTEREST TO ANY OTHER PERSON, SUCH INTEREST OR ESTATE MAY BE ASSIGNED ONLY
IF THE INTENDED ASSIGNEE HAS PROVIDED ADEQUATE ASSURANCE OF FUTURE PERFORMANCE,
AS DEFINED IN THIS SUBPARAGRAPH (D), OF ALL OF THE TERMS, COVENANTS, AND
CONDITIONS OF THIS LEASE.
(I)
FOR PURPOSES OF THIS SUBPARAGRAPH (D),
"ADEQUATE ASSURANCE OF FUTURE PERFORMANCE" MEANS THAT LANDLORD HAS ASCERTAINED
THAT EACH OF THE FOLLOWING CONDITIONS HAS BEEN SATISFIED:
(1)
THE ASSIGNEE HAS SUBMITTED A CURRENT
FINANCIAL STATEMENT, AUDITED BY A CERTIFIED PUBLIC ACCOUNTANT, WHICH SHOWS A NET