Bankruptcy of Tenant. 16.10.1 In the event that Tenant shall become a debtor in a case filed under Chapter 7 of the Bankruptcy Code and Tenant's trustee or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may be made only if the provisions of SECTIONS 16.10.2 AND 16.10.4 are satisfied as if the election to assume were made in a case filed under Chapter 11 of the Bankruptcy Code. If Tenant or Tenant's trustee shall fail to elect to assume this Lease within sixty (60) days after the filing of such petition or such additional time as provided by the court within such sixty (60)-day period, this Lease shall be deemed to have been rejected. Immediately thereupon Landlord shall be entitled to possession of the Suite without further obligation to Tenant or Tenant's trustee and this Lease upon the election of Landlord shall terminate, but Landlord's right to be compensated for damages (including, without limitation, liquidated damages pursuant to any provision hereof) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated. 16.10.2 In the event that Tenant shall become a debtor in a case filed under Chapter 11 of the Bankruptcy Code, or in a case filed under Chapter 7 of the Bankruptcy Code which is transferred to Chapter 11, Tenant's trustee or Tenant, as debtor-in-possession, must elect to assume this Lease within 120 days from the date of the filing of the petition under Chapter 11 or the transfer thereto or Tenant's trustee or the debtor-in-possession shall be deemed to have rejected this Lease. In the event that Tenant, Tenant's trustee or the debtor-in-possession has failed to perform all of Tenant's obligations under this Lease within the time periods (excluding grace periods) required for such performance, no election by Tenant's trustee or the debtor-in-possession to assume this Lease, whether under Chapter 7 or Chapter 11, shall be permitted or effective unless each of the following conditions has been satisfied: 16.10.2.1 Tenant's trustee or the debtor-in-possession has cured all Events of Default under this Lease, or has provided Landlord with Assurance (as defined below) that it will cure all Events of Default susceptible of being cured by the payment of money within ten (10) days from the date of such assumption and that it will cure all other Events of Default under this Lease which are susceptible of being cured by the performance of any act promptly after the date of such assumption. 16.10.2.2 Tenant's trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with Assurance that within ten (10) days from the date of such assumption it will compensate Landlord, for any actual pecuniary loss incurred by Landlord arising from the default of Tenant, Tenant's trustee, or the debtor-in-possession as indicated in any statement of actual pecuniary loss sent by Landlord to Tenant's trustee or the debtor-in-possession. 16.10.2.3 Tenant's trustee or the debtor-in-possession has provided Landlord with Assurance of the future performance of each of the obligations of Tenant, Tenant's trustee or the debtor-in-possession under this Lease, and, if Tenant's trustee or the debtor-in-possession has provided such Assurance, Tenant's trustee or the debtor-in-possession shall also (a) deposit with Landlord, as security for the timely payment of rent hereunder, an amount equal to three installments of Rent (at the rate then payable) which shall be applied to installments of Rent in the inverse order in which such installments shall become due provided all the terms and provisions of this Lease shall have been complied with, and (b) pay in advance to Landlord on the date each installment of Rent is payable a pro rata share of Tenant's annual obligations for Additional Rent pursuant to this Lease, such that Landlord shall hold funds sufficient to satisfy all such obligations as they become due. The obligations imposed upon Tenant's trustee or the debtor-in-possession by this Section shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings. 16.10.2.4 The assumption of this Lease will not breach or cause a default under any provision of any other lease, mortgage, financing arrangement or other agreement by which Landlord is bound. 16.10.3 For purposes of this Section, Landlord and Tenant acknowledge that "ASSURANCE" shall mean no less than: Tenant's 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 sufficient funds will be available to fulfill the obligations of Tenant under this Lease, and there shall have been deposited with Landlord, or the Bankruptcy Court shall have entered an order segregating, sufficient cash payable to Landlord, and/or Tenant's trustee or the debtor-in-possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, Tenant's trustee or the debtor-in-possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of Tenant, Tenant's trustee or the debtor-in-possession to cure the Events of Default under this Lease, monetary and/or non-monetary, within the time periods set forth above.
Appears in 3 contracts
Samples: Lease Agreement (Windrose Medical Properties Trust), Lease Agreement (Windrose Medical Properties Trust), Lease Agreement (Windrose Medical Properties Trust)
Bankruptcy of Tenant. 16.10.1 In the event that (a) If Tenant shall become files a debtor in petition for bankruptcy liquidation, including a case filed petition under Chapter 7 of the Bankruptcy Code Code, or any successor chapter thereto, and Tenant's trustee or Tenant shall elect the Trustee in bankruptcy elects to assume this Lease for the purpose of assigning the same Lease, or otherwiseseeks to assume and assign this Lease, such election and assumption and/or assignment may shall be made only if the provisions of SECTIONS 16.10.2 AND 16.10.4 are satisfied as if the election subject to assume were made in a case filed under Chapter 11 of the Bankruptcy Codesubparagraphs (b) and (c) below. If Tenant or Tenant's trustee shall fail to elect the Trustee fails to assume this Lease within sixty (60) days after the filing of such the petition or such additional time as provided by the court within such sixty (60)-day periodin bankruptcy, this Lease shall be deemed to have been rejected. Immediately thereupon Subject only to the provisions below relating to the rights of any Leasehold Mortgagee, Landlord shall be thereupon immediately entitled to possession of the Suite without Leased Premises, and shall have no further obligation to Tenant or Tenant's trustee Trustee, and this Lease upon the election of Landlord shall terminatebe canceled, but Landlord's ’s right to be compensated for damages (including, without limitation, liquidated damages pursuant to any provision hereof) or the exercise of any other remedies in any such liquidation proceeding shall survive, whether or not this Lease shall be terminated.
16.10.2 (b) In the event that Tenant shall become a debtor in petition for reorganization is filed concerning the Tenant, whether through a voluntary petition, an order granting an involuntary petition or through conversion of a case filed from any other chapter, including any such reorganization case under Chapter 11 of the Bankruptcy Code, or in a case filed under Chapter 7 of any successor chapter thereto, the Bankruptcy Code which is transferred to Chapter 11, Tenant's trustee or Tenant, as debtorDebtor-in-possessionPossession, or any Trustee, must elect to assume this Lease within 120 seventy-five (75) days from the date of on which the filing of the voluntary petition under Chapter 11 was filed or the transfer thereto or Tenant's trustee or the debtor-in-possession shall be deemed to have rejected this Leaseorder for relief was entered. In the event that Tenant, Tenant's trustee or the debtor-in-possession has failed to perform all of Tenant's obligations under this Lease within the time periods (excluding grace periods) required for such performance, no No election by Tenant's trustee or the debtor-in-possession to assume this Lease, whether under any Chapter 7 or Chapter 11of the Bankruptcy Code, shall be permitted or effective unless each of the following conditions has conditions, which Landlord and Tenant acknowledge and stipulate are commercially reasonable in the context of a bankruptcy proceeding of Tenant, have been satisfied, and Landlord has so acknowledged in writing:
16.10.2.1 Tenant's trustee (i) The Trustee or the debtorDebtor-inIn-possession Possession has cured all Events of Default under this Leasecured, or has provided Landlord with Assurance adequate assurance (as defined below) that it will cure all Events of Default susceptible of being cured by the payment of money that: (1) within ten (10) days from the date of such assumption and that it will cure assumption, all other Events of Default monetary defaults under this Lease which are susceptible of being cured by the performance of any act promptly after will be cured; and (2) within thirty (30) days from the date of such assumption, all non-monetary defaults under this Lease will be cured.
16.10.2.2 Tenant's trustee or the debtor-in-possession (ii) The Landlord has compensated Landlordbeen compensated, or has been provided Landlord with Assurance adequate assurance (as defined below) that within ten (10) days from the date of such assumption it assumption, Landlord will compensate Landlord, be compensated for any actual pecuniary loss incurred by Landlord arising from the default of Tenant, Tenant's trustee, the Trustee or the debtorDebtor-inIn-possession Possession as indicated recited in any Landlord’s written statement of actual pecuniary loss sent by Landlord to Tenant's trustee the Trustee or the debtorDebtor-inIn-possessionPossession.
16.10.2.3 Tenant's trustee or the debtor-in-possession (c) The Landlord has been provided Landlord with Assurance adequate assurance of the future performance of each of the Tenant’s obligations under this Lease. Unless otherwise agreed in writing agreed by Landlord, such adequate assurance shall include the payment of Tenant, Tenant's trustee a sum equal to the Basic Rental for the twelve (12) month period immediately preceding the date of assumption within ten (10) days of such assumption. The Tenant or the debtorTrustee-in-possession under bankruptcy shall promptly perform and honor all post-petition obligations relating to this Lease. With respect to the calendar month in which the petition in bankruptcy is filed, the Tenant or Trustee-in-bankruptcy shall pay any obligation for that month on a pro rata basis based on the number of days in such calendar month after the filing of the petition. When, pursuant to the Bankruptcy Code or other applicable bankruptcy law, the Trustee or Debtor-In-Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Leased Premises or any portion thereof, such charges shall not be less than the full consideration (whether monetary or non-monetary) provided in this Lease, andincluding the appropriate Base Rental, if Tenant's trustee or which the debtor-in-possession has provided such Assuranceparties agree and stipulate to constitute a reasonable compensation.
(d) If the Lease is rejected, and subject only to the rights of a Leasehold Mortgagee as set forth in this subparagraph, the Lease shall be deemed as terminated for all other purposes, subject to the rights of any Leasehold Mortgagee under a nondisturbance agreement between Landlord, Tenant's trustee or , and the debtor-in-possession Leasehold Mortgagee.
(e) Neither Tenant’s interest in this Lease, nor any lesser interest of Tenant herein, nor any estate of Tenant hereby created, shall also (a) deposit with Landlordpass to any trustee, as security receiver, assignee for the timely payment benefit of creditors, or any other person or entity, or otherwise by operation of law under the laws of any state having jurisdiction of the person or property of Tenant (hereinafter referred to as the “state law”) unless Landlord shall consent to such transfer in writing. No acceptance by Landlord of rent hereunderor any other payments from any trustee, an amount equal to three installments of Rent (at the rate then payable) which receiver, assignee, person or other entity shall be applied deemed to installments have waived, nor shall it waive the need to obtain Landlord’s consent of Rent Landlord’s right to terminate this Lease for any transfer of Tenant’s interest under this Lease without such consent.
(f) Subject to the right of Tenant or any Leasehold Mortgagee to cure as permitted in this Lease, in the inverse order event the estate of Tenant created hereby shall be taken in which such installments shall become due provided all the terms and provisions execution or any other process of law, or if a Receiver or Trustee of any property of Tenant or guarantor of this Lease shall have been complied with, and (b) pay in advance to Landlord on the date each installment of Rent is payable a pro rata share be appointed under state law by reason of Tenant's annual obligations for Additional Rent pursuant ’s or guarantor’s insolvency or inability to this Lease, such that Landlord shall hold funds sufficient to satisfy all such obligations pay its debts as they become due. The obligations imposed upon due or otherwise, or if any assignment shall be made of Tenant's trustee ’s or guarantor’s property for the debtor-in-possession by this Section shall continue with respect to Tenant or any assignee benefit of creditors under state law, then and in such event, Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder by giving Tenant written notice of the election to so terminate within thirty (30) days after the completion occurrence of bankruptcy proceedingssuch event.
16.10.2.4 The assumption of this Lease will not breach or cause a default under any provision of any other lease, mortgage, financing arrangement or other agreement by which Landlord is bound.
16.10.3 For purposes of this Section, Landlord and Tenant acknowledge that "ASSURANCE" shall mean no less than: Tenant's 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 sufficient funds will be available to fulfill the obligations of Tenant under this Lease, and there shall have been deposited with Landlord, or the Bankruptcy Court shall have entered an order segregating, sufficient cash payable to Landlord, and/or Tenant's trustee or the debtor-in-possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, Tenant's trustee or the debtor-in-possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of Tenant, Tenant's trustee or the debtor-in-possession to cure the Events of Default under this Lease, monetary and/or non-monetary, within the time periods set forth above.
Appears in 2 contracts
Samples: Ground Lease Agreement, Ground Lease Agreement (Apple REIT Nine, Inc.)
Bankruptcy of Tenant. 16.10.1 (a) In the event that Tenant shall become a debtor in a case filed under Chapter 7 of the Bankruptcy Code and Tenant's ’s trustee or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may be made only if the provisions of SECTIONS 16.10.2 AND 16.10.4 Section 13.6. (b) and Section 13.6. (d) are satisfied as if the election to assume were made in a case filed under Chapter 11 of the Bankruptcy Code. If Tenant or Tenant's ’s trustee shall fail to elect to assume this Lease within sixty (60) days after the filing of such petition or such additional time as provided by the court within such sixty (60)-day 60-day period, this Lease shall be deemed to have been rejected. Immediately rejected and immediately thereupon Landlord shall be entitled to possession of the Suite Premises without further obligation to Tenant or Tenant's ’s trustee and this Lease upon the election of Landlord shall terminate, but Landlord's ’s right to be compensated for damages (including, without limitation, liquidated damages pursuant to any provision hereof) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.
16.10.2 (i) In the event that Tenant shall become a debtor in a case filed under Chapter 11 of the Bankruptcy Code, or in a case filed under Chapter 7 of the Bankruptcy Code which is transferred to Chapter 11, Tenant's ’s trustee or Tenant, as debtor-in-possession, must elect to assume this Lease within 120 sixty (60) days from the date of the filing of the petition under Chapter 11 or the transfer thereto or such additional time as provided by the court or Tenant's ’s trustee or the debtor-in-in possession shall be deemed to have rejected this Lease. In the event that Tenant, Tenant's ’s trustee or the debtor-in-possession has failed to perform all of Tenant's ’s obligations under this Lease within the time periods (excluding grace periods) required for such performance, no election by Tenant's ’s trustee or the debtor-in-possession to assume this Lease, whether under Chapter 7 or Chapter 11, shall be permitted or effective unless each of the following conditions has been satisfied:
16.10.2.1 (1) Tenant's ’s trustee or the debtor-in-in possession has cured all Events of Default under this Lease, or has provided Landlord with Assurance (as defined below) that it will cure all Events of Default susceptible of being cured by the payment of money within ten (10) days from the date of such assumption and that it will cure all other Events of Default under this Lease which are susceptible of being cured by the performance of any act promptly after the date of such assumption.
16.10.2.2 (2) Tenant's ’s trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with Assurance that within ten (10) days from the date of such assumption it will compensate Landlord, for any actual pecuniary loss incurred by Landlord arising from the default of Tenant, Tenant's ’s trustee, or the debtor-in-possession as indicated in any statement of actual pecuniary loss sent by Landlord to Tenant's ’s trustee or the debtor-in-possession.
16.10.2.3 (3) Tenant's ’s trustee or the debtor-in-possession has provided Landlord with Assurance of the future performance of each of the obligations of Tenant, Tenant's ’s trustee or the debtor-in-possession under this Lease, and, if Tenant's ’s trustee or the debtor-in-possession has provided such Assurance, Tenant's ’s trustee or the debtor-in-possession shall also (ai) deposit with Landlord, as security for the timely payment of rent hereunder, an amount equal to three installments one (1) installment of Rent (at the rate then payable) which shall be applied to installments of Rent in the inverse order in which such installments shall become due provided all the terms and provisions of this Lease shall have been complied with, and (bii) pay in advance to Landlord on the date each installment of Rent is payable a pro rata share of Tenant's ’s annual obligations for Additional Rent pursuant to this Lease, such that Landlord shall hold funds sufficient to satisfy all such obligations as they become due. The obligations imposed upon Tenant's ’s trustee or the debtor-in-possession by this Section shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
16.10.2.4 (4) The assumption of this Lease will not breach or cause a default under any provision of any other lease, mortgage, financing arrangement or other agreement by which Landlord is bound.
16.10.3 (ii) For purposes of this SectionSection 13.6. , Landlord and Tenant acknowledge that "ASSURANCE" “Assurance” shall mean no less than: Tenant's ’s 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 sufficient funds will be available to fulfill the obligations of Tenant under this Lease, and (x) there shall have been deposited with Landlord, or the Bankruptcy Court shall have entered an order segregating, sufficient cash payable to Landlord, and/or (y) Tenant's ’s trustee or the debtor-in-possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, Tenant's ’s trustee or the debtor-in-possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of Tenant, Tenant's ’s trustee or the debtor-in-possession to cure the Events of Default under this Lease, monetary and/or non-monetary, within the time periods set forth above.
(c) In the event that this Lease is assumed in accordance with Section 13.6. (b) and thereafter Tenant is liquidated or has filed against it (without dismissal within sixty (60) days thereafter) or files a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code, Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder by giving Tenant notice of its election to so terminate within thirty (30) days after the occurrence of any such event.
(d) If Tenant’s trustee or the debtor-in-possession has assumed this Lease pursuant to the terms and provisions of Section 13.6. (a) or Section 13.6. (b) for the purpose of assigning (or elects to assign) this Lease, this Lease may be so assigned only if the proposed assignee (the “Assignee”) has provided adequate assurance of future performance of all of the terms, covenants and conditions of this Lease to be performed by Tenant. Landlord shall be entitled to receive all cash proceeds of such assignment. As used herein “adequate assurance of future performance” shall mean no less than that each of the following conditions has been satisfied;
(i) the Assignee has furnished Landlord with either (1) (x) a copy of a credit rating of Assignee which Landlord reasonably determines to be sufficient to assure the future performance by Assignee of Tenant’s obligations under this Lease and (y) a current financial statement of Assignee audited by a certified public accountant indicating a net worth and working capital in amounts which Landlord reasonably determines to be sufficient to assure the future performance by Assignee of Tenant’s obligations under this Lease, or (ii) a guarantee or guarantees, in form and substance satisfactory to Landlord, from one or more persons with a credit rating and net worth equal to or exceeding the credit rating and net worth of Tenant as of the date hereof.
(ii) Landlord has obtained all consents or waivers from others required under any lease, mortgage, financing arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignment.
(e) when, pursuant to the Bankruptcy Code, Tenant’s trustee or the debtor-in-possession shall be obligated to pay reasonable use and occupancy charges for the use of the Premises, such charges shall not be less than the Rent payable by Tenant under this Lease.
(f) Neither the whole nor any portion of Tenant’s interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, by operation of law or otherwise under the laws of any state having jurisdiction of the person or property of Tenant unless Landlord shall have consented to such transfer. No acceptance by Landlord of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Landlord nor shall it be deemed a waiver of Landlord’s right to terminate this Lease for any transfer of Tenant’s interest under this Lease without such consent.
(g) In the event of an assignment of Tenant’s interests pursuant to this Section 13.6. , the right of Assignee to extend the term of this Lease for an extended term beyond the then term of this Lease shall be extinguished.
Appears in 2 contracts
Samples: Master Lease (Foundation Healthcare, Inc.), Master Lease (Graymark Healthcare, Inc.)
Bankruptcy of Tenant. 16.10.1 If the Term or a substantial portion of the goods and chattels of the Tenant on the Leased Premises at any time during the Term are seized or taken in execution or attachment by a creditor of the Tenant, or if the Tenant makes an assignment for the benefit of creditors or if a receiver-manager is appointed to control the conduct of the business on or from the Leased Premises, or if the Tenant becomes bankrupt or insolvent or takes the benefit of a statute now or hereafter in force for bankrupt or insolvent debtors, or if an order is made for the winding up of the Tenant, or if the Leased Premises, without the written consent of the Landlord, become and remain vacant or abandoned for a period of fifteen (15) days or are used by any other persons than those entitled to use them under the terms of this Lease, the next ensuing three (3) months’ Rent immediately will become due and payable as accelerated rent and the Landlord may re-enter and take possession of the Leased Premises as provided herein, and this Lease, at the option of the Landlord exercisable by written notice to the Tenant, forthwith will become forfeited and determined. In every one of the event cases above mentioned the accelerated rent will be recoverable by the Landlord in the same manner as the rents hereby reserved and as if rent were in arrears. The Tenant acknowledges and agrees that Tenant shall become a debtor in a case filed under Chapter 7 no circumstances will it file any notice of termination seeking to take advantage of Section 65.2 of the Bankruptcy Code and Tenant's trustee or Insolvency Act (Canada) as amended from time to time and now waives any and all rights to do so. The Tenant shall elect agrees that if, in breach of this paragraph, it files such a notice, the Landlord may, in addition to assume all its other remedies, produce and rely on this Lease for paragraph in challenging the purpose validity of assigning the same or otherwise, such election and assignment may be made only if notice in the provisions of SECTIONS 16.10.2 AND 16.10.4 are satisfied as if the election to assume were made in a case filed under Chapter 11 court proceedings contemplated by Section 65.2(2) of the Bankruptcy Code. If Tenant and Insolvency Act and the Landlord may in those or Tenant's trustee shall fail to elect to assume this Lease within sixty (60) days after the filing of such petition or such additional time as provided by the court within such sixty (60)-day period, this Lease shall be deemed to have been rejected. Immediately thereupon Landlord shall be entitled to possession of the Suite without further obligation to Tenant or Tenant's trustee and this Lease upon the election of Landlord shall terminate, but Landlord's right to be compensated for damages (including, without limitation, liquidated damages pursuant to any provision hereof) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.
16.10.2 In the event that Tenant shall become a debtor in a case filed under Chapter 11 of the Bankruptcy Code, or in a case filed under Chapter 7 of the Bankruptcy Code which is transferred to Chapter 11, Tenant's trustee or Tenant, as debtor-in-possession, must elect to assume this Lease within 120 days from the date of the filing of the petition under Chapter 11 or the transfer thereto or Tenant's trustee or the debtor-in-possession shall be deemed to have rejected this Lease. In the event that Tenant, Tenant's trustee or the debtor-in-possession has failed to perform all of Tenant's obligations under this Lease within the time periods (excluding grace periods) required proceedings apply for such performance, no election by Tenant's trustee or the debtor-in-possession to assume this Lease, whether under Chapter 7 or Chapter 11, shall be permitted or effective unless each of the following conditions has been satisfied:
16.10.2.1 Tenant's trustee or the debtor-in-possession has cured all Events of Default under this Lease, or has provided Landlord with Assurance (as defined below) that it will cure all Events of Default susceptible of being cured by the payment of money within ten (10) days from the date of such assumption and that it will cure all other Events of Default under this Lease which are susceptible of being cured by the performance of any act promptly after the date of such assumption.
16.10.2.2 Tenant's trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with Assurance that within ten (10) days from the date of such assumption it will compensate Landlord, for any actual pecuniary loss incurred by Landlord arising from the default of Tenant, Tenant's trustee, or the debtor-in-possession as indicated in any statement of actual pecuniary loss sent by Landlord to Tenant's trustee or the debtor-in-possession.
16.10.2.3 Tenant's trustee or the debtor-in-possession has provided Landlord with Assurance of the future performance of each of the obligations of Tenant, Tenant's trustee or the debtor-in-possession under this Lease, and, if Tenant's trustee or the debtor-in-possession has provided such Assurance, Tenant's trustee or the debtor-in-possession shall also (a) deposit with Landlord, as security for the timely payment of rent hereunder, an amount equal to three installments of Rent (at the rate then payable) which shall be applied to installments of Rent in the inverse order in which such installments shall become due provided all the terms and provisions of this Lease shall have been complied with, and (b) pay in advance to Landlord on the date each installment of Rent is payable a pro rata share of Tenant's annual obligations for Additional Rent pursuant to this Lease, such that Landlord shall hold funds sufficient to satisfy all such obligations as they become due. The obligations imposed upon Tenant's trustee or the debtor-in-possession by this Section shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
16.10.2.4 The assumption of this Lease will not breach or cause a default under any provision of any other lease, mortgage, financing arrangement injunctive or other agreement by which Landlord is boundrelief against the Tenant filing the notice.
16.10.3 For purposes of this Section, Landlord and Tenant acknowledge that "ASSURANCE" shall mean no less than: Tenant's 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 sufficient funds will be available to fulfill the obligations of Tenant under this Lease, and there shall have been deposited with Landlord, or the Bankruptcy Court shall have entered an order segregating, sufficient cash payable to Landlord, and/or Tenant's trustee or the debtor-in-possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, Tenant's trustee or the debtor-in-possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of Tenant, Tenant's trustee or the debtor-in-possession to cure the Events of Default under this Lease, monetary and/or non-monetary, within the time periods set forth above.
Appears in 2 contracts
Samples: Office Premises Lease (Pivotal Corp), Office Premises Lease (Pivotal Corp)
Bankruptcy of Tenant. 16.10.1 In the event that (a) If a petition is filed by, or an order for relief is entered against, Tenant shall become a debtor in a case filed under Chapter 7 of the Bankruptcy Code and Tenant's the trustee of Tenant elects to assume this Lease for the purpose of assigning it, the election or Tenant shall assignment, or both, may be made only if all of the terms and conditions of subsections (b) and (c) of this Section are satisfied. If the trustee fails to elect to assume this Lease for the purpose of assigning it within sixty (60) days after trustee's appointment, this Lease will be deemed to have been rejected. Landlord shall then immediately be entitled to possession of the same Premises without further obligation to Tenant or otherwisethe trustee, such election and assignment may this Lease will be made only if the provisions of SECTIONS 16.10.2 AND 16.10.4 are satisfied as if the election canceled. Landlord's right to assume were made be compensated for damages in this bankruptcy proceeding, however, shall survive.
(b) If Tenant files a case filed petition for reorganization under Chapter chapters 11 or 13 of the Bankruptcy Code. If Code or a proceeding that is 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 shall fail to elect or Tenant as a debtor-in-possession fails to assume this Lease within sixty (60) days after the filing of such petition or such additional time as provided by the court within such sixty (60)-day period, this Lease shall be deemed to have been rejected. Immediately thereupon Landlord shall be entitled to possession of the Suite without further obligation to Tenant or Tenant's trustee and this Lease upon the election of Landlord shall terminate, but Landlord's right to be compensated for damages (including, without limitation, liquidated damages pursuant to any provision hereof) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.
16.10.2 In the event that Tenant shall become a debtor in a case filed under Chapter 11 of the Bankruptcy Code, or in a case filed under Chapter 7 of the Bankruptcy Code which is transferred to Chapter 11, Tenant's trustee or Tenant, as debtor-in-possession, must elect to assume this Lease within 120 days from the date of the filing of the petition under Chapter 11 or the transfer thereto or Tenant's conversion, the trustee or the debtor-in-possession shall will be deemed to have rejected this Lease. In the event that TenantTo be effective, Tenant's trustee or the debtor-in-possession has failed to perform all of Tenant's obligations under this Lease within the time periods (excluding grace periods) required for such performance, no an election by Tenant's trustee or the debtor-in-possession to assume this LeaseLease must be in writing and addressed to Landlord and, whether under Chapter 7 or Chapter 11in Landlord's business judgment, shall be permitted or effective unless each all of the following conditions has conditions, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied:
16.10.2.1 Tenant's i) The trustee or the debtor-in-possession has cured all Events of Default under this Lease, or has provided to Landlord with Assurance (adequate assurance, as defined belowin this section, that:
(A) that it The trustee will cure all Events of Default susceptible of being cured by the payment of money monetary defaults under this Lease within ten (10) days from the date of such assumption and that it the assumption; and
(B) The trustee will cure all other Events of Default nonmonetary defaults under this Lease which are susceptible of being cured by the performance of any act promptly after within thirty (30) days from the date of such assumption.
16.10.2.2 Tenant's ii) The trustee or the debtor-in-possession has compensated Landlord, or has provided to Landlord with Assurance adequate assurance, as defined in this Section, that within ten (10) days from the date of such the assumption it Landlord will compensate Landlord, be compensated for any actual pecuniary loss Landlord incurred by Landlord arising from the default of Tenant, Tenant's the trustee, or the debtor-in-possession as indicated recited in any Landlord's written statement of actual pecuniary loss sent by Landlord to Tenant's the trustee or the debtor-in-possession.
16.10.2.3 Tenant's iii) The trustee or the debtor-in-possession has provided Landlord with Assurance adequate assurance of the future performance of each of the obligations of Tenant, Tenant's obligations under this Lease; provided, however, that the trustee or the debtor-in-possession under this Lease, and, if Tenant's trustee or the debtor-in-possession has provided such Assurance, Tenant's trustee or the debtor-in-possession shall will also (a) deposit with Landlord, as security for the timely payment of rent hereunderrent, an amount equal to three installments (3) months' Base Rent and additional rent for pass-throughs of Rent (at Operating Expenses and other monetary charges accruing under this Lease.
iv) Landlord has determined that the rate then payable) which shall be applied to installments of Rent in the inverse order in which such installments shall become due provided all the terms and provisions assumption of this Lease shall have been complied withwill not breach any provision in any other lease, and mortgage, financing agreement, or other agreement by which Landlord is bound relating to the Complex.
v) For purposes of this section, "adequate assurance" means that:
(bA) pay in advance to Landlord on will determine that the date each installment of Rent is payable a pro rata share of Tenant's annual obligations for Additional Rent pursuant to this Lease, such that Landlord shall hold funds sufficient to satisfy all such obligations as they become due. The obligations imposed upon Tenant's trustee or the debtor-in-possession by this Section shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
16.10.2.4 The assumption of this Lease will not breach or cause a default under any provision of any other leasehas, mortgage, financing arrangement or other agreement by which Landlord is bound.
16.10.3 For purposes of this Section, Landlord and Tenant acknowledge that "ASSURANCE" shall mean no less than: Tenant's trustee or the debtor-in-possession has and will continue to have have, sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that sufficient funds will be available to fulfill the obligations of Tenant under this Lease, and there shall have been deposited with Landlord, or the Bankruptcy Court shall have entered an order segregating, sufficient cash payable to Landlord, and/or Tenant's trustee or the debtor-in-possession shall will have granted sufficient funds to fulfill Tenant's obligations under this Lease; and
(B) An order will have been entered segregating sufficient cash payable to Landlord and/or a valid and perfected first lien and security interest and/or mortgage will have been granted in property of Tenant, Tenant's trustee trustee, or the debtor-in-possession, possession that is acceptable as to for value and kind to Landlord, to secure to Landlord the obligation of Tenantthe trustee or debtor-in-possession to immediately cure any monetary or nonmonetary defaults under this Lease.
(c) In the event that this Lease is assumed by a trustee appointed for Tenant or by Tenant as debtor-in-possession under the provisions of subsection (b) above and, thereafter, Tenant is either adjudicated a bankrupt or files a subsequent petition for arrangement under chapter 11 of the Bankruptcy Code, then Landlord may terminate, at its option, this Lease and all of Tenant's rights under it, by giving written notice of Landlord's election to terminate.
(d) If the trustee or the debtor-in-possession has assumed this Lease, under the terms of subsections (a) or (b) above, to cure assign or to elect to assign Tenant's interest under this Lease or the Events estate created by that interest to any other person, that interest or estate may be assigned only if Landlord acknowledges in writing that the intended assignee has provided adequate assurance, as defined in this subsection (d), of Default future performance of all of the terms, covenants, and conditions of this Lease to be performed by Tenant. For the purposes of this subsection (d), adequate assurance of future performance means that Landlord has ascertained that each of the following conditions has been satisfied:
i) The assignee has submitted a current financial statement, audited by a certified public accountant, that shows a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future performance by the assignee of Tenant's obligation under this Lease.
ii) If requested by Landlord, the assignee will obtain guarantees, in form and substance satisfactory to Landlord, from one or more persons who satisfy Landlord's standards of credit-worthiness.
iii) Landlord has obtained all consents or waivers from any third party required under any lease, mortgage, financing arrangement, or other agreement by which Landlord is bound, to enable Landlord to permit the assignment.
(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, the charges will not be less than the Base Rent as defined in this Lease and other monetary and/or non-monetaryobligations of Tenant for the payment of additional rent.
(f) Neither Tenant's interest in this Lease nor any estate of Tenant created in this Lease will pass to any trustee, within receiver, assignee for the time periods set forth abovebenefit of creditors, or any other person or entity, or 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 this 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, the need to obtain Landlord's consent or Landlord's right to terminate this Lease for any transfer of Tenant's interest under this Lease without that consent.
Appears in 1 contract
Samples: Lease Agreement (Advanced Switching Communications Inc)
Bankruptcy of Tenant. 16.10.1 In the event that (a) If a petition is filed by, or an order for relief is entered against, Tenant shall become a debtor in a case filed under Chapter 7 of the Bankruptcy Code and Tenant's the trustee of Tenant elects to assume this Lease for the purpose of assigning it, the election or Tenant shall assignment, or both, may be made only if all of the terms and conditions of subsections (b) and (c) of this Section are satisfied. If the trustee fails to elect to assume this Lease for the purpose of assigning it within sixty (60) days after trustee's appointment, this Lease will be deemed to have been rejected. Landlord shall then immediately be entitled to possession of the same Premises without further obligation to Tenant or otherwisethe trustee, such election and assignment may this Lease will be made only if the provisions of SECTIONS 16.10.2 AND 16.10.4 are satisfied as if the election canceled. Landlord's right to assume were made be compensated for damages in this bankruptcy proceeding, however, shall survive. 26 105 (b) If Tenant files a case filed petition for reorganization under Chapter chapters 11 or 13 of the Bankruptcy Code. If Code or a proceeding that is 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 shall fail to elect or Tenant as a debtor-in-possession fails to assume this Lease within sixty (60) days after the filing of such petition or such additional time as provided by the court within such sixty (60)-day period, this Lease shall be deemed to have been rejected. Immediately thereupon Landlord shall be entitled to possession of the Suite without further obligation to Tenant or Tenant's trustee and this Lease upon the election of Landlord shall terminate, but Landlord's right to be compensated for damages (including, without limitation, liquidated damages pursuant to any provision hereof) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.
16.10.2 In the event that Tenant shall become a debtor in a case filed under Chapter 11 of the Bankruptcy Code, or in a case filed under Chapter 7 of the Bankruptcy Code which is transferred to Chapter 11, Tenant's trustee or Tenant, as debtor-in-possession, must elect to assume this Lease within 120 days from the date of the filing of the petition under Chapter 11 or the transfer thereto or Tenant's conversion, the trustee or the debtor-in-possession shall will be deemed to have rejected this Lease. In the event that TenantTo be effective, Tenant's trustee or the debtor-in-possession has failed to perform all of Tenant's obligations under this Lease within the time periods (excluding grace periods) required for such performance, no an election by Tenant's trustee or the debtor-in-possession to assume this LeaseLease must be in writing and addressed to Landlord and, whether under Chapter 7 or Chapter 11in Landlord's business judgment, shall be permitted or effective unless each all of the following conditions has conditions, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied:
16.10.2.1 Tenant's i) The trustee or the debtor-in-possession has cured all Events of Default under this Lease, or has provided to Landlord with Assurance (adequate assurance, as defined belowin this section, that:
(A) that it The trustee will cure all Events of Default susceptible of being cured by the payment of money monetary defaults under this Lease within ten (10) days from the date of such assumption and that it the assumption; and
(B) The trustee will cure all other Events of Default nonmonetary defaults under this Lease which are susceptible of being cured by the performance of any act promptly after within thirty (30) days from the date of such assumption.
16.10.2.2 Tenant's ii) The trustee or the debtor-in-possession has compensated Landlord, or has provided to Landlord with Assurance adequate assurance, as defined in this Section, that within ten (10) days from the date of such the assumption it Landlord will compensate Landlord, be compensated for any actual pecuniary loss Landlord incurred by Landlord arising from the default of Tenant, Tenant's the trustee, or the debtor-in-possession as indicated recited in any Landlord's written statement of actual pecuniary loss sent by Landlord to Tenant's the trustee or the debtor-in-possession.
16.10.2.3 Tenant's iii) The trustee or the debtor-in-possession has provided Landlord with Assurance adequate assurance of the future performance of each of the obligations of Tenant, Tenant's obligations under this Lease; provided, however, that the trustee or the debtor-in-possession under this Lease, and, if Tenant's trustee or the debtor-in-possession has provided such Assurance, Tenant's trustee or the debtor-in-possession shall will also (a) deposit with Landlord, as security for the timely payment of rent hereunderrent, an amount equal to three installments (3) months' Base Rent and additional rent for pass-throughs of Rent (at Operating Expenses and other monetary charges accruing under this Lease.
iv) Landlord has determined that the rate then payable) which shall be applied to installments of Rent in the inverse order in which such installments shall become due provided all the terms and provisions assumption of this Lease shall have been complied withwill not breach any provision in any other lease, and mortgage, financing agreement, or other agreement by which Landlord is bound relating to the Complex.
v) For purposes of this section, "adequate assurance" means that:
(bA) pay in advance to Landlord on will determine that the date each installment of Rent is payable a pro rata share of Tenant's annual obligations for Additional Rent pursuant to this Lease, such that Landlord shall hold funds sufficient to satisfy all such obligations as they become due. The obligations imposed upon Tenant's trustee or the debtor-in-possession by this Section shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
16.10.2.4 The assumption of this Lease will not breach or cause a default under any provision of any other leasehas, mortgage, financing arrangement or other agreement by which Landlord is bound.
16.10.3 For purposes of this Section, Landlord and Tenant acknowledge that "ASSURANCE" shall mean no less than: Tenant's trustee or the debtor-in-possession has and will continue to have have, sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that sufficient funds will be available to fulfill the obligations of Tenant under this Lease, and there shall have been deposited with Landlord, or the Bankruptcy Court shall have entered an order segregating, sufficient cash payable to Landlord, and/or Tenant's trustee or 106 the debtor-in-possession shall will have granted sufficient funds to fulfill Tenant's obligations under this Lease; and
(B) An order will have been entered segregating sufficient cash payable to Landlord and/or a valid and perfected first lien and security interest and/or mortgage will have been granted in property of Tenant, Tenant's trustee trustee, or the debtor-in-possession, possession that is acceptable as to for value and kind to Landlord, to secure to Landlord the obligation of Tenant, Tenant's the trustee or the debtor-in-possession to immediately cure the Events of Default any monetary or nonmonetary defaults under this Lease, monetary and/or non-monetary, within the time periods set forth above.
Appears in 1 contract
Samples: Assignment of Lease (Advanced Switching Communications Inc)
Bankruptcy of Tenant. 16.10.1 If the Term or a substantial portion of the goods and chattels of the Tenant or, the Leased Premises at any time during the Term are seized or taken in execution or attachment by a creditor of the Tenant, or if the Tenant makes an assignment for the benefit of creditors or if a receiver-manager is appointed to control the conduct of the business on or from the Leased Premises, or if the Tenant becomes bankrupt or insolvent or takes the benefit of a statute now or hereafter in force for bankrupt or insolvent debtors, or if an order is made for the winding-up of the Tenant, or if the Leased Premises, without the written consent of the Landlord, become and remain vacant or abandoned for a period of fifteen (15) days or are used by any other persons than those entitled to use them under the terms of this Lease, the next ensuing three (3) months' Rent immediately will become due and payable as accelerated rent and the Landlord may re-enter and take possession of the Leased Premises as provided herein, and this Lease, at the option of the Landlord exercisable by written notice to the Tenant, forthwith will become forfeited and determined. In every one of the event cases above mentioned the accelerated rent will be recoverable by the Landlord in the same manner as the rents hereby reserved and as if rent were in arrears. The Tenant acknowledges and agrees that Tenant shall become a debtor in a case filed under Chapter 7 no circumstances will it file any notice of termination seeking to take advantage of Section 65.2 of the Bankruptcy Code and Tenant's trustee or Insolvency Act (Canada) as amended from time to time and now waives any and all rights to do so. The Tenant shall elect agrees that if, in breach of this paragraph, it files such a notice, the Landlord may, in addition to assume all its other remedies, produce and rely on this Lease for paragraph in challenging the purpose validity of assigning the same or otherwise, such election and assignment may be made only if notice in the provisions of SECTIONS 16.10.2 AND 16.10.4 are satisfied as if the election to assume were made in a case filed under Chapter 11 court proceedings contemplated by Section 65.2(2) of the Bankruptcy Code. If Tenant and Insolvency Act and the Landlord may in those or Tenant's trustee shall fail to elect to assume this Lease within sixty (60) days after the filing of such petition or such additional time as provided by the court within such sixty (60)-day period, this Lease shall be deemed to have been rejected. Immediately thereupon Landlord shall be entitled to possession of the Suite without further obligation to Tenant or Tenant's trustee and this Lease upon the election of Landlord shall terminate, but Landlord's right to be compensated for damages (including, without limitation, liquidated damages pursuant to any provision hereof) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.
16.10.2 In the event that Tenant shall become a debtor in a case filed under Chapter 11 of the Bankruptcy Code, or in a case filed under Chapter 7 of the Bankruptcy Code which is transferred to Chapter 11, Tenant's trustee or Tenant, as debtor-in-possession, must elect to assume this Lease within 120 days from the date of the filing of the petition under Chapter 11 or the transfer thereto or Tenant's trustee or the debtor-in-possession shall be deemed to have rejected this Lease. In the event that Tenant, Tenant's trustee or the debtor-in-possession has failed to perform all of Tenant's obligations under this Lease within the time periods (excluding grace periods) required proceedings apply for such performance, no election by Tenant's trustee or the debtor-in-possession to assume this Lease, whether under Chapter 7 or Chapter 11, shall be permitted or effective unless each of the following conditions has been satisfied:
16.10.2.1 Tenant's trustee or the debtor-in-possession has cured all Events of Default under this Lease, or has provided Landlord with Assurance (as defined below) that it will cure all Events of Default susceptible of being cured by the payment of money within ten (10) days from the date of such assumption and that it will cure all other Events of Default under this Lease which are susceptible of being cured by the performance of any act promptly after the date of such assumption.
16.10.2.2 Tenant's trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with Assurance that within ten (10) days from the date of such assumption it will compensate Landlord, for any actual pecuniary loss incurred by Landlord arising from the default of Tenant, Tenant's trustee, or the debtor-in-possession as indicated in any statement of actual pecuniary loss sent by Landlord to Tenant's trustee or the debtor-in-possession.
16.10.2.3 Tenant's trustee or the debtor-in-possession has provided Landlord with Assurance of the future performance of each of the obligations of Tenant, Tenant's trustee or the debtor-in-possession under this Lease, and, if Tenant's trustee or the debtor-in-possession has provided such Assurance, Tenant's trustee or the debtor-in-possession shall also (a) deposit with Landlord, as security for the timely payment of rent hereunder, an amount equal to three installments of Rent (at the rate then payable) which shall be applied to installments of Rent in the inverse order in which such installments shall become due provided all the terms and provisions of this Lease shall have been complied with, and (b) pay in advance to Landlord on the date each installment of Rent is payable a pro rata share of Tenant's annual obligations for Additional Rent pursuant to this Lease, such that Landlord shall hold funds sufficient to satisfy all such obligations as they become due. The obligations imposed upon Tenant's trustee or the debtor-in-possession by this Section shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
16.10.2.4 The assumption of this Lease will not breach or cause a default under any provision of any other lease, mortgage, financing arrangement injunctive or other agreement by which Landlord is boundrelief against the Tenant filing the notice.
16.10.3 For purposes of this Section, Landlord and Tenant acknowledge that "ASSURANCE" shall mean no less than: Tenant's 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 sufficient funds will be available to fulfill the obligations of Tenant under this Lease, and there shall have been deposited with Landlord, or the Bankruptcy Court shall have entered an order segregating, sufficient cash payable to Landlord, and/or Tenant's trustee or the debtor-in-possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, Tenant's trustee or the debtor-in-possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of Tenant, Tenant's trustee or the debtor-in-possession to cure the Events of Default under this Lease, monetary and/or non-monetary, within the time periods set forth above.
Appears in 1 contract
Bankruptcy of Tenant. 16.10.1 (a) In the event that Tenant shall become a debtor in a case filed under Chapter 7 of the Bankruptcy Code and Tenant's trustee or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may be made only if the provisions of SECTIONS 16.10.2 AND 16.10.4 Section 13.6.(b) and Section 13.6.(c) are satisfied as if the election to assume were made in a case filed under Chapter 11 under Title 11 of the United States Code (the “Bankruptcy Code. If Tenant or Tenant's trustee shall fail to elect to assume this Lease within sixty (60) days after the filing of such petition or such additional time as provided by the court within such sixty (60)-day period, this Lease shall be deemed to have been rejected. Immediately thereupon Landlord shall be entitled to possession of the Suite without further obligation to Tenant or Tenant's trustee and this Lease upon the election of Landlord shall terminate, but Landlord's right to be compensated for damages (including, without limitation, liquidated damages pursuant to any provision hereof) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated”).
16.10.2 (i) In the event that Tenant shall become a debtor in a case filed under Chapter 11 of the Bankruptcy Code, or in a case filed under Chapter 7 of the Bankruptcy Code which is transferred converted to a case under Chapter 1111 of the Bankruptcy Code, Tenant's trustee or Tenant, as debtor-in-in- possession, must elect to assume this Lease within 120 days from the date time period specified by Section 365(d)(4) of the filing of the petition under Chapter 11 or the transfer thereto Bankruptcy Code or Tenant's trustee or the debtor-in-in- possession shall be deemed to have rejected this Lease. In the event that TenantTxxxxx, TenantTxxxxx's trustee or the debtor-in-possession has failed to perform all of Tenant's obligations under this Lease within the time periods (excluding grace periods) required for such performance, no election by TenantTxxxxx's 4823-7309-7009.2 STORE / CSI Labs Amended and Restated Lease Agreement 2000 Xxxxxxxx Xx., Xxxxxxxxxx, XX File No.: 7210/02-432.1 17 trustee or the debtor-in-possession to assume this Lease, whether under a case filed under Chapter 7 or Chapter 11, shall be permitted or effective unless each of the following conditions has been satisfied:
16.10.2.1 (1) Tenant's trustee or the Tenant, as debtor-in-possession in- possession, has cured all Events of Default under this LeaseLease (except any Events of Default that Tenant's trustee or Tenant, as debtor-in- possession, are excused from curing under Section 365(b)(1)(A) of the Bankruptcy Code) , or has provided Landlord with Assurance (as defined below) adequate assurance that it Tenant will promptly cure all Events of Default susceptible of being cured by the payment of money within ten (10) days from the date of such assumption and that it will cure all other except any Events of Default that Txxxxx's trustee or Tenant, as debtor-in- possession, are excused from curing under this Lease which are susceptible Section 365(b)(1)(A) of being cured the Bankruptcy Code) within a reasonable period of time as determined by the performance of any act promptly after the date of such assumptionBankruptcy Court.
16.10.2.2 (2) Tenant's trustee or the Tenant, as debtor-in-possession possession, has compensated Landlord, or has provided Landlord with Assurance adequate assurance that within ten (10) days from the date of such assumption it Tenant's trustee or Tenant, as debtor-in-possession, will promptly compensate Landlord, for any actual pecuniary loss incurred by Landlord arising from the default of Tenant, TenantTxxxxx's trustee, or the debtor-in-possession Tenant as indicated in any statement of actual pecuniary loss sent by Landlord to Tenant's trustee or the debtor-in-possession.
16.10.2.3 Tenant's trustee or the debtor-in-possession has provided Landlord with Assurance of the future performance of each of the obligations of Tenant, Tenant's trustee or the debtor-in-possession under this the Lease, and, if .
(3) Tenant's trustee or the Tenant, as debtor-in-possession possession, has provided such Assurance, Tenant's trustee or Landlord with adequate assurance of future performance under the debtor-in-possession shall also (a) deposit with Landlord, as security for the timely payment of rent hereunder, an amount equal to three installments of Rent (at the rate then payable) which shall be applied to installments of Rent in the inverse order in which such installments shall become due provided all the terms and provisions of this Lease shall have been complied with, and (b) pay in advance to Landlord on the date each installment of Rent is payable a pro rata share of Tenant's annual obligations for Additional Rent pursuant to this Lease, such that Landlord shall hold funds sufficient to satisfy all such obligations as they become due. The obligations imposed upon Tenant's trustee or the debtor-in-possession by this Section shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
16.10.2.4 (4) The assumption of this Lease will not breach or cause a default under any provision of any other lease, mortgage, financing arrangement or other agreement by which Landlord is bound. 4823-7309-7009.2 STORE / CSI Labs Amended and Restated Lease Agreement 2000 Xxxxxxxx Xx., Xxxxxxxxxx, XX File No.: 7210/02-432.1 18
16.10.3 (ii) For purposes of this SectionSection 13.6(b), Landlord and Tenant acknowledge that "ASSURANCE" adequate assurance of future performance shall mean no less thanmean: (1) Tenant's trustee or the debtor-in-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 sufficient funds will be available to fulfill the obligations of Tenant under this Lease, and (2) there shall have been deposited with Landlord, or the Bankruptcy Court shall have entered an order segregating, sufficient cash payable to Landlord, and/or (3) Tenant's trustee or the debtor-in-possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, TenantTxxxxx's trustee or the debtor-in-possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of Tenant, TenantTxxxxx's trustee or the debtor-in-possession to cure the Events of Default under this Lease, monetary and/or non-monetary, within or (4) the time periods set forth aboveBankruptcy Court has determined that Txxxxx's trustee or Tenant, as debtor-in- possession, has provided Landlord with adequate assurance of future performance as required under Section 365(b)(1)(C) of the Bankruptcy Code and applicable law.
(c) If Tenant's trustee or the debtor-in-possession has assumed this Lease pursuant to the terms and provisions of Section 13.6.(a) or Section 13.6.(b) for the purpose of assigning (or elects to assign) this Lease, this Lease may be so assigned only if the proposed Assignee provides Landlord with adequate assurance of future performance of all of the terms, covenants and conditions of this Lease as required by Section 365(f)(2)(B) of the Bankruptcy Code. Landlord shall be entitled to receive all cash proceeds of such assignment; provided that, Txxxxx's trustee or Tenant, as debtor-in-possession, shall be entitled to receive any proceeds that exceed the full amount of Landlord’s right to a monetary cure claim amount, if any. As used herein "adequate assurance of future performance" shall mean no less than that each of the following conditions has been satisfied:
(i) The Bankruptcy Court has determined that Assignee has provided Landlord with adequate assurance of future performance as required under Section 365(f)(2)(B) of the Bankruptcy Code and applicable law, or the Assignee has furnished Landlord with either (2) (x) a copy of a credit rating of Assignee which Landlord reasonably determines to be sufficient to assure the future performance by Assignee of Tenant's obligations under this Lease and (y) a current financial statement of Assignee audited by a certified public accountant indicating a net worth and working capital in amounts which Landlord reasonably determines to be sufficient to assure the future performance by Assignee of Tenant's obligations under this Lease, or (3) a guarantee or guarantees, in form and substance satisfactory to Landlord, from one or more persons with a credit rating and net worth equal to or exceeding the credit rating and net worth of Tenant as of the date hereof.
(ii) Landlord has obtained all consents or waivers from others required under any lease, mortgage, financing arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignment.
Appears in 1 contract
Bankruptcy of Tenant. 16.10.1 In The following shall be Events of Bankruptcy under this Lease: (i) Tenant’s becoming insolvent, as that term is defined in Title 11 of the event that Tenant shall become United States Code, entitled Bankruptcy, 11 U.S.C. Sec 101 et seq. (the “Bankruptcy Code”), or under the insolvency Table of Contents laws of any State, District, Commonwealth or territory of the United States (“Insolvency Laws”); (ii) the appointment of a debtor in receiver or custodian for any or all of Tenant’s property or assets, or the institution of a case filed foreclosure action upon any of Tenant’s real or personal property which is not dismissed within sixty (60) days; (iii) the filing of a voluntary petition under Chapter 7 the provisions of the Bankruptcy Code and Tenant's trustee or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may be made only if the provisions of SECTIONS 16.10.2 AND 16.10.4 are satisfied as if the election to assume were made in a case filed under Chapter 11 of the Bankruptcy Code. If Tenant or Tenant's trustee shall fail to elect to assume this Lease Insolvency Laws which is either not dismissed within sixty (60) days after of filing, or results in issuance of an order for relief against the debtor, whichever is later; (iv) the filing of such an involuntary petition against Tenant as the subject debtor under the Bankruptcy Code or such additional time as provided by the court Insolvency Laws, which is either not dismissed within such sixty (60)-day period60) days of filing, or results in the issuance of an order for relief against the debtor, whichever is later; or (v) Tenant’s making or consenting to an assignment for the benefit of creditors or a common law composition of creditors. Upon occurrence of an Event of Bankruptcy, Landlord shall have the right to terminate this Lease by giving written notice to Tenant, provided, however, that this section shall have no effect while a case in which Tenant is the subject debtor under the Bankruptcy Code is pending, unless Tenant or its Trustee is unable to comply with the provisions below. At all other times this Lease shall be deemed to have been rejected. Immediately thereupon Landlord automatically cease and terminate, and Tenant shall be entitled immediately obligated to possession quit the Premises upon the giving of the Suite without further obligation notice pursuant to Tenant this section. Any other notice to quit, or Tenant's trustee and notice of Landlord’s intention to re-enter is hereby expressly waived. If Landlord elects to terminate this Lease, everything contained in this Lease upon on the election part of Landlord shall terminate, but Landlord's right to be compensated for done and performed shall cease without prejudice, subject, however, to the rights of Landlord to recover from Tenant all rent and any other sums accrued up to the time of termination or recovery of possession by Landlord, whichever is later, and any other monetary damages (including, without limitation, liquidated damages pursuant or loss of reserved rent sustained by Landlord. Without regard to any provision hereof) or action by Landlord as authorized above, Landlord may at its discretion exercise all the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.
16.10.2 additional provisions set forth below. In the event that Tenant shall become a becomes the subject debtor in a case filed pending under Chapter 11 of the Bankruptcy Code, or in a case filed under Chapter 7 Landlord’s right to terminate this Lease pursuant to this section shall be subject to the rights of the Trustee in Bankruptcy Code which is transferred to Chapter 11, Tenant's trustee or Tenant, as debtor-in-possession, must elect to assume this Lease within 120 days from the date of the filing of the petition under Chapter 11 or the transfer thereto or Tenant's trustee or the debtor-in-possession shall be deemed to have rejected assign this Lease. In The Trustee shall not have the event that Tenant, Tenant's trustee right to assume or the debtor-in-possession has failed to perform all of Tenant's obligations under assign this Lease within unless the time periods Trustee (excluding grace periodsi) required for such performance, no election by Tenant's trustee or the debtor-in-possession to assume this Lease, whether under Chapter 7 or Chapter 11, shall be permitted or effective unless each of the following conditions has been satisfied:
16.10.2.1 Tenant's trustee or the debtor-in-possession has cured promptly cures all Events of Default defaults under this Lease, or has provided (ii) properly compensates Landlord with Assurance (for monetary damages incurred as defined below) that it will cure all Events of Default susceptible of being cured by the payment of money within ten (10) days from the date a result of such assumption and that it will cure all other Events of Default under this Lease which are susceptible of being cured by the performance of any act promptly after the date of such assumption.
16.10.2.2 Tenant's trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with Assurance that within ten (10) days from the date of such assumption it will compensate Landlord, for any actual pecuniary loss incurred by Landlord arising from the default of Tenant, Tenant's trustee, or the debtor-in-possession as indicated in any statement of actual pecuniary loss sent by Landlord to Tenant's trustee or the debtor-in-possession.
16.10.2.3 Tenant's trustee or the debtor-in-possession has provided Landlord with Assurance of the future performance of each of the obligations of Tenant, Tenant's trustee or the debtor-in-possession under this Lease, and, if Tenant's trustee or the debtor-in-possession has provided such Assurance, Tenant's trustee or the debtor-in-possession shall also (a) deposit with Landlord, as security for the timely payment of rent hereunder, an amount equal to three installments of Rent (at the rate then payable) which shall be applied to installments of Rent in the inverse order in which such installments shall become due provided all the terms and provisions of this Lease shall have been complied withdefault, and (biii) pay in advance to Landlord provides adequate assurance of future performance on the date each installment of Rent is payable a pro rata share of Tenant's annual obligations for Additional Rent pursuant to this Lease, such that Landlord shall hold funds sufficient to satisfy all such obligations as they become due. The obligations imposed upon Tenant's trustee or the debtor-in-possession by this Section shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
16.10.2.4 The assumption of this Lease will not breach or cause a default under any provision of any other lease, mortgage, financing arrangement or other agreement by which Landlord is bound.
16.10.3 For purposes of this Section, Landlord and Tenant acknowledge that "ASSURANCE" shall mean no less than: Tenant's 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 sufficient funds will be available to fulfill the obligations part of Tenant under this Lease, and there shall have been deposited with Landlord, as debtor in possession or on the Bankruptcy Court shall have entered an order segregating, sufficient cash payable to Landlord, and/or part of the assignee Tenant's trustee or the debtor-in-possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, Tenant's trustee or the debtor-in-possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of Tenant, Tenant's trustee or the debtor-in-possession to cure the Events of Default under this Lease, monetary and/or non-monetary, within the time periods set forth above.
Appears in 1 contract
Samples: Lease Agreement (Switch, Inc.)
Bankruptcy of Tenant. 16.10.1 (a) In the event that Tenant shall become make an assignment for the benefit of creditors, or shall file a debtor in voluntary petition under any state or federal bankruptcy or insolvency law, or an involuntary petition alleging an act of bankruptcy or insolvency shall be filed against Tenant under any state or federal bankruptcy or insolvency law, or whenever a case petition shall be filed by or against Tenant under Chapter 7 the reorganization provisions of the United States Bankruptcy Code and Tenant's trustee Act or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may be made only if under the provisions of SECTIONS 16.10.2 AND 16.10.4 are satisfied any law of like import, or whenever a petition shall be filed by Tenant under the arrangement provisions of the United States Bankruptcy Act or similar law, or whenever a receiver of Tenant, or of or for the property of Tenant shall be appointed, or Tenant admits it is insolvent or is not able to pay its debts as they mature, then Landlord, if such event occurs without the election to assume were made acquiescence of Tenant at any time after the event continues for sixty (60) days, or otherwise with no such grace period, may give Tenant a notice of default, and may exercise its remedies as provided in Article XXII below.
(b) If following the filing of a petition by or against Tenant in a case filed under Chapter bankruptcy court, Landlord shall not be permitted to terminate this Lease as herein provided because of the provisions of Title 11 of the United States Code relating to Bankruptcy, as amended (the "Bankruptcy Code. If code"), then Tenant (including Tenant as Debtor-in-Possession) or Tenant's any trustee shall fail for Tenant agrees to elect to assume this Lease within promptly, but no later than sixty (60) days after petition by Landlord to the filing bankruptcy court, assume or reject this Lease, and Tenant agrees not to seek or request any extension or adjournment, of such any petition to assume or such additional time as provided by the court within such sixty (60)-day period, reject this Lease by Landlord with such court. Tenant's, or the trustee's, failure to assume this Lease within said 60-day period shall be deemed to have been rejecteda rejection. Immediately thereupon Landlord shall thereupon immediately be entitled to possession of the Suite Premises without further obligation to Tenant or Tenant's trustee the trustee, and this Lease upon the election of Landlord shall terminate, but Landlord's right to be compensated for damages (including, without limitation, liquidated damages pursuant to any provision hereof) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated, except that Landlord's right to damages for Tenant's default shall survive such termination.
16.10.2 In the event that (c) Tenant shall become a debtor in a case filed under Chapter 11 of the Bankruptcy Code, or in a case filed under Chapter 7 of the Bankruptcy Code which is transferred to Chapter 11, Tenant's any trustee or Tenant, as debtor-in-possession, must elect to for Tenant may also assume this Lease within 120 days from if (i) it cures or provides adequate assurance that the date of trustee will promptly cure any default hereunder, (ii) it compensates or provides adequate assurance that the filing of the petition under Chapter 11 or the transfer thereto or Tenant's trustee or the debtor-in-possession shall be deemed to have rejected this Lease. In the event that Tenant, Tenant's trustee or the debtor-in-possession has failed to perform all of Tenant's obligations under this Lease within the time periods (excluding grace periods) required for such performance, no election by Tenant's trustee or the debtor-in-possession to assume this Lease, whether under Chapter 7 or Chapter 11, shall be permitted or effective unless each of the following conditions has been satisfied:
16.10.2.1 Tenant's trustee or the debtor-in-possession has cured all Events of Default under this Lease, or has provided Tenant will promptly compensate Landlord with Assurance (as defined below) that it will cure all Events of Default susceptible of being cured by the payment of money within ten (10) days from the date of such assumption and that it will cure all other Events of Default under this Lease which are susceptible of being cured by the performance of any act promptly after the date of such assumption.
16.10.2.2 Tenant's trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with Assurance that within ten (10) days from the date of such assumption it will compensate Landlord, for any actual pecuniary loss incurred by to Landlord arising resulting from the default of Tenant, Tenant's trusteedefault, or the debtor-in-possession as indicated in any statement and (iii) it provides adequate assurance of actual pecuniary loss sent by Landlord to Tenant's trustee or the debtor-in-possession.
16.10.2.3 Tenant's trustee or the debtor-in-possession has provided Landlord with Assurance of the future performance of each of the obligations of Tenant, Tenant's trustee or the debtor-in-possession under this Lease, and, if Lease by Tenant's . In no event after the assumption of this Lease by Tenant or any trustee or the debtor-in-possession has provided such Assurance, Tenant's trustee or the debtor-in-possession for Tenant shall also any then- existing default remain uncured for a period in excess of ten (a10) deposit with Landlord, as security for the timely payment days. Adequate assurance of rent hereunder, an amount equal to three installments of Rent (at the rate then payable) which shall be applied to installments of Rent in the inverse order in which such installments shall become due provided all the terms and provisions future performance of this Lease shall have been complied withinclude, without limitation, adequate assurance (a) of the source of Gross Rent and Additional Rent required to be paid by Tenant hereunder, and (b) pay in advance to Landlord on the date each installment of Rent is payable a pro rata share of Tenant's annual obligations for Additional Rent pursuant to this Lease, such that Landlord shall hold funds sufficient to satisfy all such obligations as they become due. The obligations imposed upon Tenant's trustee assumption or the debtor-in-possession by this Section shall continue with respect to Tenant or any assignee permitted assignment of this Lease after the completion of bankruptcy proceedings.
16.10.2.4 The assumption of this Lease lease will not breach or cause a default under any provision hereunder. To adequately assure the source of any other leaseRent due under this Lease in such event, mortgage, financing arrangement or other agreement by which Landlord is bound.
16.10.3 For purposes of this Section, Landlord and Tenant acknowledge that "ASSURANCE" Fast Heat shall mean no less than: be required to be liable for Tenant's trustee or obligations under 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 sufficient funds will be available to fulfill the obligations of Tenant under this Lease, and there shall have been deposited with Landlord, or the Bankruptcy Court shall have entered an order segregating, sufficient cash payable to Landlord, and/or Tenant's trustee or the debtor-in-possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, Tenant's trustee or the debtor-in-possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of Tenant, Tenant's trustee or the debtor-in-possession to cure the Events of Default under this Lease, monetary and/or non-monetary, within the time periods set forth aboveGuaranty.
Appears in 1 contract
Bankruptcy of Tenant. 16.10.1 In the event that Tenant shall become a debtor in a case filed under Chapter 7 of the Bankruptcy Code and Tenant's trustee or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may be made only if the provisions of SECTIONS 16.10.2 AND 16.10.4 are satisfied as if the election to assume were made in a case filed under Chapter 11 of the Bankruptcy Code. If Tenant or Tenant's trustee shall fail to elect to assume this Lease within sixty (60A) days after the filing of such petition or such additional time as provided by the court within such sixty (60)-day period, this Lease The following shall be deemed to have been rejected. Immediately thereupon Landlord shall be entitled to possession Events of the Suite without further obligation to Tenant or Bankruptcy under this Lease:
(1) Tenant's trustee and this Lease upon the election of Landlord shall terminate’s becoming insolvent, but Landlord's right to be compensated for damages (including, without limitation, liquidated damages pursuant to any provision hereof) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.
16.10.2 In the event as that Tenant shall become a debtor in a case filed term is defined under Chapter 11 of the Bankruptcy Code, or in under the insolvency laws of any state, district, commonwealth or territory of the United States (the “Insolvency Laws”);
(2) The appointment of a case filed receiver or custodian for any or all of Tenant’s property or assets, or the institution of a foreclosure action upon any of Tenant’s real or personal property;
(3) The filing of a voluntary petition under Chapter 7 the provisions of the Bankruptcy Code or Insolvency Laws;
(4) The filing of an involuntary petition against Tenant as the subject debtor under the Bankruptcy Code or Insolvency Laws, which either (i) is transferred not dismissed within seventy-five (75) days of filing, or (ii) results in the issuance of an order for relief against the debtor; or
(5) Tenant’s making or consenting to Chapter 11an assignment for the benefit of creditors or a common law composition of creditors.
(1) Upon occurrence of an Event of Bankruptcy, Tenant's trustee Landlord shall have all rights and remedies available to Landlord pursuant to Paragraph 15 hereof; provided that while a case in which Tenant is the subject debtor under the Bankruptcy Code is pending and only for so long as Tenant or Tenantits Trustee in Bankruptcy (hereinafter referred to as “Trustee”) is in compliance with the provisions of Paragraph 26(B)(2) and (3) below, as debtor-in-possessionLandlord shall not exercise its rights and remedies pursuant to Paragraph 15 hereof.
(2) In the event Tenant becomes the subject debtor in a case pending under the Bankruptcy Code, must elect Landlord’s right to terminate this Lease pursuant to Paragraph 26(B)(1) shall be subject to the rights of Trustee to assume this Lease within 120 days from the date of the filing of the petition under Chapter 11 or the transfer thereto or Tenant's trustee or the debtor-in-possession shall be deemed to have rejected assign this Lease. In Trustee shall not have the event that Tenant, Tenant's trustee right to assume or the debtor-in-possession has failed to perform all of Tenant's obligations under assign this Lease within the time periods unless Trustee promptly (excluding grace periodsi) required for such performance, no election by Tenant's trustee or the debtor-in-possession to assume this Lease, whether under Chapter 7 or Chapter 11, shall be permitted or effective unless each of the following conditions has been satisfied:
16.10.2.1 Tenant's trustee or the debtor-in-possession has cured cures all Events of Default defaults under this Lease, or has provided (ii) compensates Landlord with Assurance (for monetary damages incurred as defined below) that it will cure all Events of Default susceptible of being cured by the payment of money within ten (10) days from the date a result of such assumption defaults, and that it will (iii) provides adequate assurance of future performance on the part of Tenant as debtor in possession or on the part of the assignee tenant.
(3) In the event Tenant is unable to (i) cure all other Events of Default its defaults, (ii) reimburse the Landlord for its monetary damages, (iii) pay the Annual Rent due under this Lease which are susceptible of being cured by the performance of any act promptly after the date of such assumption.
16.10.2.2 Tenant's trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with Assurance that within ten (10) days from the date of such assumption it will compensate Landlord, for any actual pecuniary loss incurred by Landlord arising from the default of Tenant, Tenant's trustee, or the debtor-in-possession as indicated in any statement of actual pecuniary loss sent by Landlord to Tenant's trustee or the debtor-in-possession.
16.10.2.3 Tenant's trustee or the debtor-in-possession has provided Landlord with Assurance of the future performance of each of the obligations of Tenant, Tenant's trustee or the debtor-in-possession under this Lease, and, if Tenant's trustee or the debtor-in-possession has provided such Assurance, Tenant's trustee or the debtor-in-possession shall also (a) deposit with Landlord, as security for the timely payment of rent hereunder, an amount equal to three installments of Rent (at the rate then payable) which shall be applied to installments of Rent in the inverse order in which such installments shall become due provided and all the terms and provisions of this Lease shall have been complied with, and (b) pay in advance to Landlord on the date each installment of Rent is payable a pro rata share of Tenant's annual obligations for Additional Rent pursuant to this Lease, such that Landlord shall hold funds sufficient to satisfy all such obligations as they become due. The obligations imposed upon Tenant's trustee or the debtor-in-possession by this Section shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
16.10.2.4 The assumption of this Lease will not breach or cause a default under any provision of any other lease, mortgage, financing arrangement or other agreement by which Landlord is bound.
16.10.3 For purposes of this Section, Landlord and Tenant acknowledge that "ASSURANCE" shall mean no less than: Tenant's 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 sufficient funds will be available to fulfill the obligations payments required of Tenant under this LeaseLease on time (or within - 13 - five (5) days of the due date) or (iv) meet the criteria and obligations imposed by Paragraph 26(B)(2) above, Tenant agrees in advance that it has not met its burden to provide adequate assurance of future performance, and there shall have been deposited this Lease may be terminated by Landlord in accordance with Landlord, or the Bankruptcy Court shall have entered an order segregating, sufficient cash payable to Landlord, and/or Tenant's trustee or the debtor-in-possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, Tenant's trustee or the debtor-in-possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of Tenant, Tenant's trustee or the debtor-in-possession to cure the Events of Default under this Lease, monetary and/or non-monetary, within the time periods set forth Paragraph 26(B)(1) above.
Appears in 1 contract
Bankruptcy of Tenant. 16.10.1 In the event that Tenant shall become a debtor in a case filed under Chapter 7 of the Bankruptcy Code and Tenant's trustee or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may be made only if the provisions of SECTIONS 16.10.2 AND 16.10.4 are satisfied as if the election to assume were made in a case filed under Chapter 11 of the Bankruptcy Code. (a) If Tenant or Tenant's trustee shall fail to elect to assume this Lease within sixty (60) days after the filing of such petition or such additional time as provided by the court within such sixty (60)-day period, this Lease there shall be deemed to have been rejected. Immediately thereupon Landlord shall be entitled to possession of the Suite without further obligation to Tenant or filed against Tenant's trustee and this Lease upon the election of Landlord shall terminate, but Landlord's right to be compensated for damages (includingin any court, without limitation, liquidated damages pursuant to any provision hereof) statute, either of the United States or the exercise of any other remedies state, a petition in bankruptcy or insolvency or for reorganization or for the appointment -of a receiver or trustee of all or any such proceeding shall survive, whether or not this Lease shall be terminated.
16.10.2 In the event that Tenant shall become a debtor in a case filed under Chapter 11 of the Bankruptcy Code, or in a case filed under Chapter 7 of the Bankruptcy Code which is transferred to Chapter 11, Tenant's trustee or Tenant, as debtor-in-possession, must elect to assume this Lease within 120 days from the date of the filing of the petition under Chapter 11 or the transfer thereto or Tenant's trustee or the debtor-in-possession shall be deemed to have rejected this Lease. In the event that Tenant, Tenant's trustee or the debtor-in-possession has failed to perform all portion of Tenant's obligations under this Lease property and Tenant fails to secure a discharge thereof within the time periods ninety (excluding grace periods) required for such performance, no election by Tenant's trustee or the debtor-in-possession to assume this Lease, whether under Chapter 7 or Chapter 11, shall be permitted or effective unless each of the following conditions has been satisfied:
16.10.2.1 Tenant's trustee or the debtor-in-possession has cured all Events of Default under this Lease, or has provided Landlord with Assurance (as defined below) that it will cure all Events of Default susceptible of being cured by the payment of money within ten (1090) days from the date of such assumption filing, or if Tenant shall voluntarily file any such petition nor make an assignment for the benefit of creditors or petition for or enter into an arrangement, then, in any of such events, this Lease, at the option of Landlord, may be canceled and that it will cure all terminated. In the event of a termination of this Lease' pursuant to this Paragraph, neither Tenant nor any person claiming through or under Tenant (whether by virtue of any statute or any order of any court or otherwise) shall be entitled to acquire or remain in possession of the Premises, as the case may be, and Tenant or any other Events of Default under such person shall forthwith quit and surrender the Premises. If this Lease which are susceptible shall be so canceled or terminated, Landlord, in addition to the other rights and remedies of being cured Landlord contained elsewhere in this Lease, or under any statute or rule of law, may retain as liquidated damages any Rent, security deposit and any other money received by the performance Landlord from Tenant or others on behalf of any act promptly after the date of such assumptionTenant.
16.10.2.2 (b) In the event of a proceeding involving Tenant under the Bankruptcy Code, 11 U.S.A. 101 et seq., if this Lease is assumed by Tenant's trustee or the debtor-in-possession in bankruptcy (after such trustee has cured all existing defaults, compensated Landlord, or has provided Landlord with Assurance that within ten (10) days from the date of such assumption it will compensate Landlord, for any actual pecuniary reasonable, compensable loss incurred resulting therefrom and provided adequate assurance of future performance), then this Lease may not be assigned by Landlord arising from the default of Tenanttrustee to a third party, Tenant's trustee, or the debtor-in-possession as indicated in any statement of actual pecuniary loss sent by Landlord to Tenant's trustee or the debtor-in-possession.
16.10.2.3 Tenant's trustee or the debtor-in-possession has provided Landlord with Assurance of the future performance of each of the obligations of Tenant, Tenant's trustee or the debtor-in-possession under this Lease, and, if Tenant's trustee or the debtor-in-possession has provided unless such Assurance, Tenant's trustee or the debtor-in-possession shall also party (a) deposit with Landlord, as security for the timely payment of rent hereunder, an amount equal to three installments of Rent (at the rate then payable) which shall be applied to installments of Rent in the inverse order in which such installments shall become due provided all the terms executes and provisions of this Lease shall have been complied with, and (b) pay in advance delivers to Landlord on the date each installment of Rent is payable a pro rata share of Tenant's annual obligations for Additional Rent pursuant an agreement in recordable form whereby such party assumes and agrees with Landlord to this Lease, such that Landlord shall hold funds sufficient to satisfy discharge all such obligations as they become due. The obligations imposed upon Tenant's trustee or the debtor-in-possession by this Section shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
16.10.2.4 The assumption of this Lease will not breach or cause a default under any provision of any other lease, mortgage, financing arrangement or other agreement by which Landlord is bound.
16.10.3 For purposes of this Section, Landlord and Tenant acknowledge that "ASSURANCE" shall mean no less than: Tenant's 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 sufficient funds will be available to fulfill the obligations of Tenant under this Lease, including, without limitation, the provisions of Paragraph 7 relating to the permitted use of the Premises and there shall have been deposited with Landlord, or the Bankruptcy Court shall have entered an order segregating, sufficient cash payable manner of operation thereof; and (b) has a net worth and operating experience at least comparable to Landlord, and/or Tenant's trustee or that possessed by Tenant named herein as of the debtor-in-possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property execution of Tenant, Tenant's trustee or the debtor-in-possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of Tenant, Tenant's trustee or the debtor-in-possession to cure the Events of Default under this Lease, monetary and/or non-monetary, within the time periods set forth above.
Appears in 1 contract
Bankruptcy of Tenant. 16.10.1 In the event that Tenant shall become a debtor in a case filed under Chapter 7 If
(a) any of the Bankruptcy Code goods and chattels of the Tenant on the Premises at any time during the Term are seized or taken in execution or attachment by a creditor of the Tenant's trustee ,
(b) the Tenant or Tenant shall elect to assume a guarantor or indemnifier of this Lease makes an assignment for the purpose benefit of assigning creditors or a bulk sale from the same Premises other than a bulk sale to an assignee or otherwise, such election and sublessee pursuant to an assignment may be made only if or sublease which under section 13.01 was consented to or did not require a consent,
(c) a receiver-manager is appointed to control the provisions of SECTIONS 16.10.2 AND 16.10.4 are satisfied as if the election to assume were made in a case filed under Chapter 11 conduct of the Bankruptcy Code. If business on or from the Premises,
(d) the Tenant becomes bankrupt or Tenant's trustee shall fail to elect to assume this Lease within sixty insolvent or takes the benefit of an Act now or hereafter in force for bankrupt or insolvent debtors,
(60e) days after an order is made for the filing of such petition or such additional time as provided by the court within such sixty (60)-day period, this Lease shall be deemed to have been rejected. Immediately thereupon Landlord shall be entitled to possession winding-up of the Suite without further obligation to Tenant or Tenant's trustee and this Lease upon .
(f) the election of Landlord shall terminate, but Landlord's right to be compensated for damages (includingPremises, without limitation, liquidated damages pursuant to any provision hereof) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.
16.10.2 In the event that Tenant shall become a debtor in a case filed under Chapter 11 written consent of the Bankruptcy CodeLandlord, or in become and remain vacant for a case filed under Chapter 7 period of the Bankruptcy Code which is transferred to Chapter 11, Tenant's trustee or Tenant, as debtor-in-possession, must elect to assume this Lease within 120 days from the date of the filing of the petition under Chapter 11 or the transfer thereto or Tenant's trustee or the debtor-in-possession shall be deemed to have rejected this Lease. In the event that Tenant, Tenant's trustee or the debtor-in-possession has failed to perform all of Tenant's obligations under this Lease within the time periods (excluding grace periods) required for such performance, no election by Tenant's trustee or the debtor-in-possession to assume this Lease, whether under Chapter 7 or Chapter 11, shall be permitted or effective unless each of the following conditions has been satisfied:
16.10.2.1 Tenant's trustee or the debtor-in-possession has cured all Events of Default under this Lease, or has provided Landlord with Assurance (as defined below) that it will cure all Events of Default susceptible of being cured by the payment of money within ten (10) days or are used by any other persons than those entitled to use them under the terms of this Lease,
(g) the Tenant, without the written consent of the Landlord, abandons or attempts to abandon the Premises or sells or disposes of its goods or chattels or removes any of them from the date of such assumption and Premises so that it will cure all other Events of Default under this Lease which are susceptible of being cured by the performance of any act promptly after the date of such assumption.
16.10.2.2 Tenant's trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with Assurance that within ten (10) days from the date of such assumption it will compensate Landlord, for any actual pecuniary loss incurred by Landlord arising from the default of Tenant, Tenant's trustee, or the debtor-in-possession as indicated in any statement of actual pecuniary loss sent by Landlord to Tenant's trustee or the debtor-in-possession.
16.10.2.3 Tenant's trustee or the debtor-in-possession has provided Landlord with Assurance of the future performance of each of the obligations of Tenant, Tenant's trustee or the debtor-in-possession under this Lease, and, if Tenant's trustee or the debtor-in-possession has provided such Assurance, Tenant's trustee or the debtor-in-possession shall also (a) deposit with Landlord, as security for the timely payment of rent hereunder, an amount equal to three installments of Rent (at the rate then payable) which shall be applied to installments of Rent there would not in the inverse order in which such installments shall become due provided all the terms and provisions event of this Lease shall have been complied withabandonment, and (b) pay in advance to Landlord sale or disposal be sufficient goods on the date each installment of Rent is payable a pro rata share of Tenant's annual obligations for Additional Rent pursuant Premises subject to this Lease, such that Landlord shall hold funds sufficient distress to satisfy all such obligations rentals due or accruing due hereunder. the then current month's rent and the next ensuing three (3) months' rent immediately will become due and payable as they become due. The obligations imposed upon Tenant's trustee accelerated rent and the Landlord may re-enter and take possession of the Premises as though the Tenant or the debtor-in-possession by this Section shall continue with respect to servants of the Tenant or any assignee other occupant of this Lease the Premises were holding over after the completion expiration of bankruptcy proceedings.
16.10.2.4 The assumption the Term and the Lease, at the option of this Lease the Landlord forthwith will not breach or cause a default under any provision become forfeited and determined. In every one of any other lease, mortgage, financing arrangement or other agreement the cases above mentioned the accelerated rent may be recovered by which the Landlord is bound.
16.10.3 For purposes of this Section, Landlord in the same manner as rent reserved and Tenant acknowledge that "ASSURANCE" shall mean no less than: Tenant's trustee or in arrears and the debtor-in-possession has and option will continue be considered to have sufficient unencumbered assets after been exercised if the payment of all secured obligations and administrative expenses Landlord or its agents notice to assure Landlord that sufficient funds will be available effect to fulfill the obligations of Tenant under this Lease, and there shall have been deposited with Landlord, or the Bankruptcy Court shall have entered an order segregating, sufficient cash payable to Landlord, and/or Tenant's trustee or the debtor-in-possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, Tenant's trustee or the debtor-in-possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of Tenant, Tenant's trustee or the debtor-in-possession to cure the Events of Default under this Lease, monetary and/or non-monetary, within the time periods set forth above.
Appears in 1 contract
Bankruptcy of Tenant. 16.10.1 (a) In the event that Tenant shall become a debtor in a case filed under Chapter 7 of the Bankruptcy Code and Tenant's ’s trustee or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may be made only if the provisions of SECTIONS 16.10.2 AND 16.10.4 Section 13.6.(b) and Section 13.6.(d) are satisfied as if the election to assume were made in a case filed under Chapter 11 of the Bankruptcy Code. If Tenant or Tenant's ’s trustee shall fail to elect to assume this Lease within sixty (60) days after the filing of such petition or such additional time as provided by the court within such sixty (60)-day 60-day period, this Lease shall be deemed to have been rejected. Immediately rejected and immediately thereupon Landlord shall be entitled to possession of the Suite Premises without further obligation to Tenant or Tenant's ’s trustee and this Lease upon the election of Landlord shall terminate, but Landlord's ’s right to be compensated for damages (including, without limitation, liquidated damages pursuant to any provision hereof) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.
16.10.2 (i) In the event that Tenant shall become a debtor in a case filed under Chapter 11 of the Bankruptcy Code, or in a case filed under Chapter 7 of the Bankruptcy Code which is transferred to Chapter 11, Tenant's ’s trustee or Tenant, as debtor-in-possession, must elect to assume this Lease within 120 sixty (60) days from the date of the filing of the petition under Chapter 11 or the transfer thereto or such additional time as provided by the court or Tenant's ’s trustee or the debtor-in-in possession shall be deemed to have rejected this Lease. In the event that Tenant, Tenant's ’s trustee or the debtor-in-possession has failed to perform all of Tenant's ’s obligations under this Lease within the time periods (excluding grace periods) required for such performance, no election by Tenant's ’s trustee or the debtor-in-possession to assume this Lease, whether under Chapter 7 or Chapter 11, shall be permitted or effective unless each of the following conditions has been satisfied:
16.10.2.1 (1) Tenant's ’s trustee or the debtor-in-in possession has cured all Events of Default under this Lease, or has provided Landlord with Assurance (as defined below) that it will cure all Events of Default susceptible of being cured by the payment of money within ten (10) days from the date of such assumption and that it will cure all other Events of Default under this Lease which are susceptible of being cured by the performance of any act promptly after the date of such assumption.
16.10.2.2 (2) Tenant's ’s trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with Assurance that within ten (10) days from the date of such assumption it will compensate Landlord, for any actual pecuniary loss incurred by Landlord arising from the default of Tenant, Tenant's ’s trustee, or the debtor-in-possession as indicated in any statement of actual pecuniary loss sent by Landlord to Tenant's ’s trustee or the debtor-in-possession.
16.10.2.3 (3) Tenant's ’s trustee or the debtor-in-possession has provided Landlord with Assurance of the future performance of each of the obligations of Tenant, Tenant's ’s trustee or the debtor-in-possession under this Lease, and, if Tenant's ’s trustee or the debtor-in-possession has provided such Assurance, Tenant's ’s trustee or the debtor-in-possession shall also (ai) deposit with Landlord, as security for the timely payment of rent hereunder, an amount equal to three installments one (1) installment of Rent (at the rate then payable) which shall be applied to installments of Rent in the inverse order in which such installments shall become due provided all the terms and provisions of this Lease shall have been complied with, and (bii) pay in advance to Landlord on the date each installment of Rent is payable a pro rata share of Tenant's ’s annual obligations for Additional Rent pursuant to this Lease, such that Landlord shall hold funds sufficient to satisfy all such obligations as they become due. The obligations imposed upon Tenant's ’s trustee or the debtor-in-possession by this Section shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
16.10.2.4 (4) The assumption of this Lease will not breach or cause a default under any provision of any other lease, mortgage, financing arrangement or other agreement by which Landlord is bound.
16.10.3 (ii) For purposes of this SectionSection 13.6., Landlord and Tenant acknowledge that "ASSURANCE" “Assurance” shall mean no less than: Tenant's ’s 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 sufficient funds will be available to fulfill the obligations of Tenant under this Lease, and (x) there shall have been deposited with Landlord, or the Bankruptcy Court shall have entered an order segregating, sufficient cash payable to Landlord, and/or (y) Tenant's ’s trustee or the debtor-in-possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, Tenant's ’s trustee or the debtor-in-possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of Tenant, Tenant's ’s trustee or the debtor-in-possession to cure the Events of Default under this Lease, monetary and/or non-monetary, within the time periods set forth above.
(c) In the event that this Lease is assumed in accordance with Section 13.6. (b) and thereafter Tenant is liquidated or has filed against it (without dismissal within sixty (60) days thereafter) or files a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code, Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder by giving Tenant notice of its election to so terminate within thirty (30) days after the occurrence of any such event.
(d) If Tenant’s trustee or the debtor-in-possession has assumed this Lease pursuant to the terms and provisions of Section 13.6.(a) or Section 13.6.(b) for the purpose of assigning (or elects to assign) this Lease, this Lease may be so assigned only if the proposed assignee (the “Assignee”) has provided adequate assurance of future performance of all of the terms, covenants and conditions of this Lease to be performed by Tenant. Landlord shall be entitled to receive all cash proceeds of such assignment. As used herein “adequate assurance of future performance” shall mean no less than that each of the following conditions has been satisfied;
(i) the Assignee has furnished Landlord with either (1) (x) a copy of a credit rating of Assignee which Landlord reasonably determines to be sufficient to assure the future performance by Assignee of Tenant’s obligations under this Lease and (y) a current financial statement of Assignee audited by a certified public accountant indicating a net worth and working capital in amounts which Landlord reasonably determines to be sufficient to assure the future performance by Assignee of Tenant’s obligations under this Lease, or (ii) a guarantee or guarantees, in form and substance satisfactory to Landlord, from one or more persons with a credit rating and net worth equal to or exceeding the credit rating and net worth of Tenant as of the date hereof.
(ii) Landlord has obtained all consents or waivers from others required under any lease, mortgage, financing arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignment.
(e) when, pursuant to the Bankruptcy Code, Tenant’s trustee or the debtor-in-possession shall be obligated to pay reasonable use and occupancy charges for the use of the Premises, such charges shall not be less than the Rent payable by Tenant under this Lease.
(f) Neither the whole nor any portion of Tenant’s interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, by operation of law or otherwise under the laws of any state having jurisdiction of the person or property of Tenant unless Landlord shall have consented to such transfer. No acceptance by Landlord of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Landlord nor shall it be deemed a waiver of Landlord’s right to terminate this Lease for any transfer of Tenant’s interest under this Lease without such consent.
(g) In the event of an assignment of Tenant’s interests pursuant to this Section 13.6., the right of Assignee to extend the term of this Lease for an extended term beyond the then term of this Lease shall be extinguished.
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