A PROCEEDING FILED BY OR AGAINST TENANT UNDER
ANY OTHER CHAPTER OF THE BANKRUPTCY CODE IS CONVERTED TO A CHAPTER 11 OR 13
PROCEEDING AND TENANT'S TRUSTEE OR TENANT AS DEBTOR-IN-POSSESSION FAILS TO
ASSUME THIS LEASE WITHIN SIXTY (60) DAYS FROM THE DATE OF THE FILING OF SUCH
PETITION OR CONVERSION, THEN THE TRUSTEE OR THE DEBTOR-IN-POSSESSION SHALL BE
DEEMED TO HAVE REJECTED THIS LEASE.
TO BE EFFECTIVE ANY ELECTION TO ASSUME THIS
LEASE MUST BE IN WRITING ADDRESSED TO LANDLORD AND, IN LANDLORD'S BUSINESS
JUDGMENT, ALL OF THE FOLLOWING CONDITIONS, WHICH LANDLORD AND TENANT ACKNOWLEDGE
TO BE COMMERCIALLY REASONABLE, MUST HAVE BEEN SATISFIED:
(I)
THE TRUSTEE OR THE DEBTOR-IN-POSSESSION HAS CURED OR HAS PROVIDED
TO LANDLORD ADEQUATE ASSURANCE, AS DEFINED IN THIS SUBPARAGRAPH (B), THAT THE
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TRUSTEE WILL CURE ALL MONETARY DEFAULTS UNDER THIS LEASE WITHIN TEN (10) DAYS
FROM THE DATE OF ASSUMPTION.
(II)
THE TRUSTEE OR THE DEBTOR-IN-POSSESSION HAS COMPENSATED LANDLORD,
OR HAS PROVIDED LANDLORD WITH ADEQUATE ASSURANCE, AS HEREINAFTER DEFINED, THAT
WITHIN TEN (10) DAYS FROM THE DATE OF ASSUMPTION LANDLORD WILL BE COMPENSATED
FOR ANY PECUNIARY LOSS IT HAS INCURRED ARISING FROM THE DEFAULT OF TENANT, THE
TRUSTEE, OR THE DEBTOR-IN-POSSESSION, AS RECITED IN LANDLORD'S WRITTEN STATEMENT
OF PECUNIARY LOSS SENT TO THE TRUSTEE OR DEBTOR-IN-POSSESSION.
(III)
THE TRUSTEE OR THE DEBTOR-IN-POSSESSION HAS PROVIDED LANDLORD
WITH ADEQUATE ASSURANCE OF THE FUTURE PERFORMANCE OF EACH OF TENANT'S
OBLIGATIONS UNDER THIS LEASE; PROVIDED, HOWEVER, THAT:
1.
FROM AND AFTER THE DATE OF ASSUMPTION OF THIS LEASE, THE TRUSTEE
OR THE DEBTOR-IN-POSSESSION SHALL PAY RENT PAYABLE UNDER THIS LEASE IN ADVANCE
IN EQUAL MONTHLY INSTALLMENTS ON EACH DATE THAT SUCH RENTS ARE PAYABLE;
2.
THE TRUSTEE OR DEBTOR-IN-POSSESSION SHALL ALSO DEPOSIT WITH
LANDLORD, AS SECURITY FOR THE TIMELY PAYMENT OF RENT, AN AMOUNT EQUAL TO THREE
(3) MONTHS' RENT AND OTHER MONETARY CHARGES ACCRUING UNDER THIS LEASE; AND
3.
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 BUILDING IN WHICH THE PREMISES IS LOCATED; OR
(2)
DISRUPT, IN LANDLORD'S JUDGMENT, THE TENANT MIX OF THE BUILDING OR
ANY OTHER ATTEMPT BY LANDLORD TO PROVIDE A SPECIFIC VARIETY OF TENANTS IN THE
BUILDING WHICH, IN LANDLORD'S JUDGMENT, 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,
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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
(2)
AN ORDER SHALL HAVE BEEN ENTERED SEGREGATING SUFFICIENT CASH
PAYABLE