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-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 WORTH AND WORKING CAPITAL IN
AMOUNTS DETERMINED BY LANDLORD TO BE SUFFICIENT TO ASSURE THE FUTURE PERFORMANCE
BY THE ASSIGNEE OF THE TENANT'S OBLIGATIONS UNDER THIS LEASE;
(2)
IF REQUESTED BY LANDLORD, THE ASSIGNEE WILL OBTAIN GUARANTEES, IN
FORM AND SUBSTANCE SATISFACTORY TO LANDLORD (I.E. LETTER(S) OF CREDIT), FROM ONE
OR MORE PERSONS WHO SATISFY LANDLORD'S STANDARDS OF CREDITWORTHINESS; AND
(3)
LANDLORD HAS OBTAINED CONSENTS OR WAIVERS FROM ANY THIRD PARTIES
WHICH MAY BE REQUIRED UNDER ANY LEASE, MORTGAGE, FINANCING ARRANGEMENT, OR OTHER
AGREEMENT BY WHICH LANDLORD IS BOUND, TO ENABLE LANDLORD TO PERMIT SUCH
ASSIGNMENT.
6
(E)
WHEN, PURSUANT TO THE BANKRUPTCY CODE, THE TRUSTEE OR THE
DEBTOR-IN-POSSESSION IS OBLIGATED TO PAY REASONABLE USE AND OCCUPANCY CHARGES
FOR THE USE OF ALL OR PART OF THE PREMISES, IT IS AGREED THAT SUCH CHARGES WILL
NOT BE LESS THAN THE RENT AS DEFINED IN THIS LEASE.
(F)
NEITHER TENANT'S INTEREST IN THIS LEASE NOR ANY ESTATE OF TENANT
CREATED IN THIS LEASE SHALL PASS TO ANY TRUSTEE, RECEIVER, ASSIGNEE FOR THE
BENEFIT OF CREDITORS, OR ANY OTHER PERSON OR ENTITY, NOR OTHERWISE BY OPERATION
OF LAW UNDER THE LAWS OF ANY STATE HAVING JURISDICTION OF THE PERSON OR PROPERTY
OF TENANT, UNLESS LANDLORD CONSENTS IN WRITING TO SUCH TRANSFER.
LANDLORD'S
ACCEPTANCE OF RENT OR ANY OTHER PAYMENTS FROM ANY TRUSTEE, RECEIVER, ASSIGNEE,
PERSON, OR OTHER ENTITY WILL NOT BE DEEMED TO HAVE WAIVED, OR WAIVE, EITHER THE
REQUIREMENT OF LANDLORD'S CONSENT OR LANDLORD'S RIGHT