Bankruptcy or Insolvency. (i) If Lessee shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee or Lessee's trustee shall fail to elect to assume this Lease within 60 days after the filing of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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. (ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code. (iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease. (iv) Neither the whole nor any portion of Lessee'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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consent. (v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 4 contracts
Samples: Lease Agreement (Manchester Technologies Inc), Lease Agreement (Manchester Technologies Inc), Lease Agreement (Point 360)
Bankruptcy or Insolvency. (i) If Lessee In the event that Tenant shall become a debtor in a case filed Debtor under Chapter 7 7, 11 or Chapter 11 13 of the Bankruptcy Code Code, and Lessee the trustee or Lessee's trustee Tenant shall elect to assume this Lease for the purpose of assigning the same of otherwise, such election and assignment may only be made if all of the terms and conditions of this Article hereof are satisfied. The Tenant acknowledges that Landlord has executed this Lease based on Tenant’s inducements as to its financial integrity, business experience and ability to pay all Tenant’s obligations under the Lease. Under these circumstances, Tenant agrees that should Tenant, as Debtor-in-Possession, or any Trustee appointed for Tenant, fail to elect to assume this Lease within 60 sixty (60) days after the filing of such petition or such additional time as provided by the courtPetition, this Lease shall be deemed to have been rejected. Immediately thereuponTenant further knowingly and voluntarily waives any right to seek additional time to affirm or reject the Lease and acknowledges that there is no cause to seek such extension. If Tenant, Lessor as Debtor-in-Possession, or the Trustee abandons the Premises, same shall be deemed a rejection of the Lease. Landlord shall be entitled to at least thirty (30) days prior written notice from Tenant, as Debtor-in-Possession, or its Trustee of any intention to abandon the Premises. Landlord shall thereupon be immediately entitled to possession of the Premises without further obligation to Lessee Tenant or Lessee's trusteethe Trustee, and this Lease, upon the election of Lessor, Lease shall terminatebe canceled, but Lessor's 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 liquidation proceeding shall survive. No election by the Trustee of Debtor-in-Possession to assume this Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable in the context of a bankruptcy proceeding of Tenant, have been satisfied, and Landlord has so acknowledged in writing:
(a) The Trustee or the Debtor-in-Possession has cured, or has provided Landlord adequate assurance (as defined below) that:
(1) Within thirty (30) days from the date of such assumption the Trustee will cure all monetary defaults under this Lease; and
(2) Within thirty (30) days from the date of such assumption the Trustee will cure all non-monetary defaults under this Lease, if such default(s) are capable of cure within thirty (30) days, otherwise within a reasonable period of time thereafter.
(b) The Trustee or the Debtor-in-Possession has compensated, or has provided to Landlord adequate assurance that within ten (10) days from the date of assumption Landlord will be compensated for any pecuniary loss incurred by Landlord arising from the default of Tenant, the Trustee, or the Debtor-in Possession as recited in Landlord’s written statement of pecuniary loss sent to the trustee or Debtor-in-Possession.
(c) The Trustee or the Debtor-in-Possession has provided Landlord with adequate assurance of the future performance (as defined below) of each of the Tenant’s, the Trustee’s or Debtor-in-Possession’s obligations under this Lease, provided, however, that:
(1) If not otherwise required by the terms of this Lease, the Trustee or Debtor-in-Possession shall also pay in advance on each date Base Rent is payable one-twelfth (1/12th) of Tenant’s annual obligations under this Lease for real estate taxes and similar charges.
(2) The obligations imposed upon the Trustee or Debtor-in Possession shall be terminatedcontinue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
(d) The assumption of the Lease cannot breach any provision in any other lease, mortgage, financing agreement or other agreement by which Landlord is bound relating to the Premises.
(e) The Tenant as Debtor-in-Possession or its Trustee shall provide the Landlord at least 45 days prior written notice of any proceedings concerning the assumption of this Lease.
(1) Landlord and Tenant acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minimum “adequate assurance” shall mean:
(i) The Trustee or the Debtor-in-Possession has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the Trustee or the Debtor-in-Possession will have sufficient funds to fulfill the obligations of Tenant under this Lease.
(ii) An assumption The Bankruptcy Court shall have entered an Order segregating sufficient cash payable to Landlord and/or the Trustee or the Debtor-in-Possession shall have granted a valid and perfected first lien and security interest and-or mortgage in property of the Tenant, the Trustee or Debtor-in-Possession, acceptable as to value and kind to Landlord, to secure to Landlord the obligation of the Trustee or Debtor-in-Possession to cure the monetary and/or nonmonetary defaults under this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder within the time periods set forth above. In the event that this Lease is assumed by a Trustee appointed for Tenant or by Tenant as Debtor-in-Possession, and exercise any and all remedies available to it if, at any time after such assumption, Lessee thereafter Tenant is liquidated or files or has filed against it a subsequent petition Petition for reorganization or adjustment of debts under Chapter 7 12 or Chapter 11 13 of the Bankruptcy Code, then, and in either of such events, Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder, by giving Tenant written notice of its election to so terminate, within thirty (30) days after the occurrence of either of such events. If the Trustee or Debtor-in-Possession has assumed this Lease pursuant to the terms and provision of this Article, for the purpose of assigning (or elects to assign) Tenant’s interest under this lease or the estate created thereby, to any other person, such interest or estate may be so assigned only if Landlord first acknowledges in writing that the intended assignee has provided adequate assurance of future performance (as defined below) of future performance of all of the terms, covenants and conditions of this Lease to be performed by Tenant. For purposes of this paragraph, in the context of a bankruptcy proceeding of Tenant, at a minimum “adequate assurance of future performance” shall mean that each of the following conditions have been satisfied, and that Landlord has so acknowledged in writing:
(a) The assignee has submitted a current financial statement audited by a Certified Public Accountant which shows a new worth and working capital in amounts determined to be sufficient by Landlord to assure the future performance by such assignee of Tenant’s obligations under this Lease.
(iiib) The assignee, if requested by Landlord, shall have obtained guarantees in form and substances satisfactory to Landlord from one or more persons who satisfy Landlord’s standards of creditworthiness.
(c) The 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 permit Landlord to consent to such assignment. When, pursuant to the Bankruptcy Code, Lessee's trustee the Trustee or the debtorDebtor-in-possession Possession shall be obligated to pay reasonable use and occupancy charges for the use of the PremisesPremises or any portion thereof, such charges shall not be less than the Basic Rent, Base Rent and Additional Rent as defined in this Lease and all other sums payable by Lessee under monetary obligations of Tenant as set forth in this Lease.
(iv) . Neither the whole nor any portion of Lessee's Tenant’s interest in this Lease or its Lease, nor any lesser interest of Tenant herein, nor any estate in the Premises of Tenant hereby created, shall pass to any trustee, receiver, assignee for the benefit of creditors creditors, or any other person or entity, or otherwise by operation of law or otherwise under the laws of any state having jurisdiction of the person or property of Lessee, Tenant (hereinafter referred to as the “state law”) unless Lessor Landlord shall have consented first consent to such transfertransfer in writing. No acceptance by Lessor 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 Lessor have waived, nor shall it be deemed a waiver of Lessor's waive the need to obtain Landlord’s prior written consent, or Landlord’s right to terminate this Lease for any transfer of Lessee's Tenant’s interest under this Lease without such prior written consent.
(v) . In the event the estate of an assignment Tenant created hereby shall be taken in execution or by the process of Lessee's interests law, or if Tenant or Tenant’s Guarantor (if applicable) shall be adjudicated insolvent pursuant to this Section, the right provisions of any assignee to extend present or future insolvency law under state law, or if any proceedings are filed by or against the Lease Term Guarantor under the Bankruptcy Code, or any similar provision of any future federal bankruptcy law, of if a Custodian, Receiver or Trustee of the property of Tenant or the Guarantor shall be extinguishedappointed under state law by reason of Tenant’s or the Guarantor’s insolvency or inability to pay its debts as they become due or otherwise, or if any assignment shall be made of Tenant’s or the Guarantor’s property for the 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 occurrence of such event. No default of this Lease by Tenant, either prior to or subsequent to the filing of such a petition, shall be deemed to have been waived unless the Landlord has expressly waived same in writing.
Appears in 3 contracts
Samples: Assignment and Assumption of Lease, Assignment and Assumption of Lease (Veri-Tek International, Corp.), Assignment and Assumption of Lease (Veri-Tek International, Corp.)
Bankruptcy or Insolvency. (ia) If Lessee shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee or Lessee's ’s trustee shall fail to elect to assume this Lease within 60 sixty (60) days after the filing of such petition or such additional time as provided by the courtcourt within such sixty (60) day period, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's ’s trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(ivb) Neither the whole nor any portion of Lessee's ’s interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, conservator, 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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's ’s right to terminate this Lease for any transfer of Lessee's ’s interest under this Lease without such consent.
(vc) In the event of an assignment of Lessee's ’s interests pursuant to this SectionSection 7.02, the right of any assignee to extend the Term for an Extended Term beyond the Primary Term or the then Extended Term of this Lease Term shall be extinguished.
Appears in 3 contracts
Samples: Lease Agreement (Gordmans Stores, Inc.), Lease Agreement (Gordmans Stores, Inc.), Lease Agreement (Modtech Holdings Inc)
Bankruptcy or Insolvency. (i) If Lessee shall become the Tenant becomes a debtor under Chapter 7 of the United States Bankruptcy Code, or in the event that a case petition for reorganization or adjustment of debts is filed concerning the Tenant under Chapter 11 or Chapter 13 of the Bankruptcy Code, or a proceeding filed under Chapter 7 or is transferred to Chapter 11 of or 13, the Bankruptcy Code and Lessee Trustee or Lessee's trustee shall fail to elect to assume this Lease within 60 days after the filing of such petition or such additional time Tenant, as provided by the courtDebtor-in-Possession, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and rejected this Lease, upon . No election by the election of Lessor, shall terminate, but Lessor's right Trustee or Debtor-in-Possession 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 assume this Lease shall be terminatedeffective unless each of the following conditions, which Landlord and Tenant hereby acknowledge to be commercially reasonable in the context of a bankruptcy proceeding, has been satisfied, and the Landlord has so acknowledged in writing:
(a) The Trustee or Debtor-in-Possession has cured, or has provided the Landlord "adequate assurance" (as hereinafter defined) that from the date of such assumption, the Trustee or Debtor-In-Possession will promptly cure all monetary and non-monetary defaults under this Lease.
(iib) An assumption The Trustee or Debtor-in-Possession has compensated, or has provided to the Landlord adequate assurance that within ten (10) days of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event the date of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 the Landlord will be compensated, for any pecuniary loss incurred by the Landlord arising from default of the Bankruptcy CodeTenant, the Trustee or the Debtor-in-Possession as recited in the Landlord's written statement of pecuniary loss sent to the Trustee or Debtor-in-Possession.
(iiic) When, pursuant to the Bankruptcy Code, Lessee's trustee The Trustee or the debtorDebtor-in-possession Possession has provided the Landlord with adequate assurance of future performance of each of the Tenant's, the Trustee's, or Debtor-in-Possession's obligations under this Lease; provided, however, that:
(1) The Trustee or Debtor-in-Possession shall be obligated to pay reasonable use and occupancy charges also deposit with the Landlord, as security for the use timely payment of the Premisesrent and other sums due hereunder, such charges shall not be less than the Basic an amount equal to three months Base Rent, Additional Rent and other sums payable by Lessee monetary charges accruing under this Lease; and
(2) The obligations imposed upon the Trustee or Debtor-in-Possession shall continue with respect to the Tenant or any assignee of this Lease after the completion of the bankruptcy proceedings.
(ivd) Neither the whole nor any portion For purposes of Lessee's interest in this Lease or its estate Paragraph, Landlord and Tenant acknowledge that, 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 context of the person or property bankruptcy proceeding of Lesseethe Tenant, unless Lessor at a minimum, "adequate assurance" shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consent.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.mean:
Appears in 3 contracts
Samples: Lease (Requisite Technology Inc /Co), Lease (Requisite Technology Inc /Co), Lease (Channelpoint Inc)
Bankruptcy or Insolvency. The Landlord and Tenant acknowledge and agree that the provisions of this Section 33 shall control notwithstanding anything to the contrary contained herein.
(ia) If Lessee In the event that Tenant shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee Tenant's trustee or LesseeTenant 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 this Section 33 are satisfied. If Tenant or Tenant's trustee shall fail to elect to assume this Lease within 60 days after the filing entry of such petition or such additional time as provided by the courtan order for relief, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor thereupon Landlord shall be entitled to possession of the Leased Premises without further obligation to Lessee Tenant or LesseeTenant's trustee, trustee and this Lease, upon the election of LessorLandlord, shall terminate, but LessorLandlord's right to be compensated for damages (including, without limitation, liquidated damages pursuant to any provision hereof) Section 19 or the exercise of any other remedies in any such proceeding proceeding) shall survive, whether or not this Lease shall be terminated.
(iib) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare In the event that a voluntary petition for reorganization is filed by Tenant, or an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee involuntary petition is liquidated or files or has filed against it a subsequent petition Tenant under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant or in the event of the entry of an order for relief under Chapter 7 in a case which is then transferred to Chapter 11, Tenant's trustee or Tenant, as debtor-in-possession must elect to assume this Lease within 60 days from the Bankruptcy Codedate of the filing of the petition under Chapter 11 or the transfer thereto, Lesseeor Tenant's trustee or the debtor-in-possession shall be obligated deemed to pay reasonable use and occupancy charges for the use have rejected this Lease. Immediately thereupon Landlord shall be entitled to possession of the PremisesLeased Premises 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 Section 19 or the exercise of any other remedies in any such charges proceeding) shall survive, whether or not this Lease shall be less than terminated.
(c) No election by Tenant's trustee or the Basic Rentdebtor-in-possession to assume this Lease, Additional Rent and other sums payable by Lessee whether under Chapter 7 or Chapter 11, shall be effective unless each of the following conditions has been satisfied:
(i) Tenant's trustee or the debtor-in-possession has cured all defaults under this Lease, or has provided Landlord with evidence satisfactory to Landlord that it will cure all defaults susceptible of being cured by the payment of money within 10 days from the date of such assumption and that it will cure all other defaults under this Lease which are susceptible of being cured by the performance of any act within 30 days after the date of such assumption.
(ii) Tenant's trustee or the debtor-in-possession has compensated, or has provided Landlord with evidence satisfactory to Landlord that, within 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.
(iii) Tenant's trustee or the debtor-in-possession (A) has provided Landlord with "Assurance", as hereinbelow defined, of the future performance of each of the obligations under this Lease of Tenant, Tenant's trustee or the debtor-in-possession and (B) shall, in addition to any other security deposits held by Landlord, deposit with Landlord, as security for the timely payment of Minimum Rental and for the performance of all other obligations of Tenant under this Lease, an amount equal to 3 monthly installments of Minimum Rental and any percentage rental payable under this Lease (both at the rate then payable), and (C) pay in advance to Landlord on the date each installment of Minimum Rental is due and payable, one-twelfth of Tenant's annual obligations for Impositions and insurance premiums to be made by Tenant pursuant to this Lease. The obligations imposed upon Tenant's trustee or the debtor-in-possession by this Section 33 shall continue with respect to Tenant or any assignee of this Lease, after the conclusion of proceedings under the Bankruptcy Code.
(iv) Neither Such assumption will not breach or cause a default under any provision of any other lease, Mortgage, financing agreement or other agreement by which Landlord or the whole nor any portion of Lessee's interest in this Lease or its estate in Superior Lessor is bound, relating to the Leased Premises shall pass to any trustee, receiver, assignee for the benefit of creditors or any other person larger development of which the Leased Premises is a part.
(d) For purposes of subsection (c)(iii) of this Section 33, Landlord and Tenant acknowledge that "Assurance" shall mean no less than: (i) Tenant's trustee or entity, by operation the debtor-in-possession has and will continue to have sufficient unencumbered assets after the payment of law or otherwise under all secured obligations and administrative expenses to assure Landlord that sufficient funds will be available to fulfill the laws obligations of any state having jurisdiction of the person or property of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest Tenant under this Lease without such consentand (ii) to secure to Landlord the obligations of Tenant, Tenant's trustee or the debtor-in-possession and to assure the ability of Tenant, Tenant's trustee or the debtor-in-possession to cure the defaults under this Lease, monetary and/or non-monetary, there shall have been: (A) sufficient cash deposited with Landlord, or (B) the Bankruptcy Court shall have entered an order segregating sufficient cash payable to Landlord and/or (C) Tenant's trustee or the debtor-in-possession shall have granted to Landlord 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.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 2 contracts
Samples: Lease (Aviation Sales Co), Lease (Aviation Sales Co)
Bankruptcy or Insolvency. (ia) If Lessee shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee or Lessee's ’s trustee shall fail to elect to assume this Lease within 60 sixty (60) days after the filing of such petition or such additional time as provided by the courtcourt within such sixty (60) day period, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's ’s trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(ivb) Neither the whole nor any portion of Lessee's ’s interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, conservator, 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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's ’s right to terminate this Lease for any transfer of Lessee's ’s interest under this Lease without such consent.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 2 contracts
Samples: Lease Agreement (M/a-Com Technology Solutions Holdings, Inc.), Lease Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Bankruptcy or Insolvency. In the event of (ia) If Lessee shall become a debtor any insolvency, ------------------------ bankruptcy, liquidation, reorganization or other similar proceedings, or any receivership proceedings in a case filed under Chapter 7 connection therewith, relative to the Company or Chapter 11 any Subsidiary, or (b) any proceedings for voluntary liquidation, dissolution or other winding-up of the Bankruptcy Code Company or any Subsidiary, whether or not involving insolvency or bankruptcy proceedings (collectively, the foregoing being "Proceedings", or individually, a "Proceeding"), then all Senior Debt, including the principal thereof, premium, if any, and Lessee or Lessee's trustee interest, including post-petition interest due thereon, shall fail to elect to assume this Lease within 60 days after the filing of such petition first be paid in full, or such additional time as payment shall have been duly provided by the courtfor, this Lease before any further payment is made with respect to Subordinated Debt. In any Proceedings, any payment or distribution of any kind or character, whether in cash, property or securities, which may be payable or deliverable with respect to Subordinated Debt shall be deemed paid or delivered directly to the holders of Senior Debt, ratably, for application in payment thereof, unless and until all Senior Debt shall have been rejectedpaid in full. Immediately thereuponIn any Proceeding, Lessor the holders of Subordinated Debt shall be entitled not have any right to possession setoff against the Subordinated Debt any Indebtedness owed by any of the Premises without further obligation holders of Subordinated Debt to Lessee the Company or Lessee's trustee, and this Lease, upon any of the election of Lessor, shall terminate, but Lessor's right to be compensated for damages Subsidiaries (including, without limitation, liquidated damages pursuant to any provision hereof) or the exercise right of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.
setoff under (ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 S)553 of the Bankruptcy Code.
(iii) When). Anything in this Section 8 to the contrary notwithstanding, no payment or delivery shall be made to holders of Senior Debt of securities that are issued and delivered to holders of Subordinated Debt pursuant to the Bankruptcy Code, Lessee's trustee liquidation or the debtor-in-possession shall be obligated to pay reasonable use and occupancy charges for the use dissolution of the PremisesCompany or in a Proceeding, or upon any merger, consolidation, sale, lease, transfer or other disposal not prohibited by the provisions of this Agreement, by the Company, as reorganized, or by the corporation succeeding to the Company or acquiring its property and assets, if (i) such charges shall not be less than securities are subordinated and junior at least to the Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor any portion of Lessee's interest extent provided in this Lease Section 8 to the payment of all Senior Debt then outstanding and to the payment of any securities that are issued in exchange or its estate in substitution for any Senior Debt then outstanding and (ii) such securities mature no earlier than six (6) months after the Premises shall pass to any trustee, receiver, assignee for scheduled maturity of the benefit of creditors or any other person or entity, by operation of law or otherwise indebtedness under the laws of any state having jurisdiction of the person or property of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consentBank Debt Agreement.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Us Legal Support Inc), Securities Purchase Agreement (Us Legal Support Inc)
Bankruptcy or Insolvency. In no event shall this Lease be assigned or assignable by operation of law and in no event shall this Lease be an asset of Tenant in any receivership, bankruptcy, insolvency or reorganization proceeding. If:
(ia) If Lessee shall become A court makes or enters any decree or order adjudging Tenant to be insolvent, or approving as properly filed by or against Tenant a debtor in a case filed petition seeking reorganization or other arrangement of Tenant under Chapter 7 or Chapter 11 any provisions of the Bankruptcy Code or any Applicable Law of the State of California, or directing the winding up or liquidation of Tenant and Lessee such decree or Lessee's trustee order shall fail have continued for a period of thirty (30) days;
(b) Tenant makes or suffers any transfer which constitutes a fraudulent or otherwise avoidable transfer under any provisions of the Bankruptcy Code or any Applicable Law of the State of California;
(c) Tenant assigns its assets for the benefit of its creditors; or
(d) The material part of the property of Tenant or any property essential to elect to assume Tenant’s business or of Tenant’s interest in this Lease within 60 days after the filing is sequestered, attached or executed upon, and Tenant fails to secure a return or release of such petition property within ten (10) business days thereafter, or prior to sale pursuant to such additional time as provided sequestration, attachment or levy, whichever is earlier; then this Lease shall, at Landlord’s election, immediately terminate and be of no further force or effect whatsoever, without the necessity for any further action by Landlord, except that Tenant shall not be relieved of obligations which have accrued prior to the courtdate of such termination. Upon such termination, the provisions herein relating to the expiration or earlier termination of this Lease shall be deemed to have been rejectedcontrol and Tenant shall immediately surrender the Premises in the condition required by the provisions of this Lease. Immediately thereuponAdditionally, Lessor Landlord shall be entitled to possession all relief, including recovery of the Premises without further obligation damages from Tenant, which may from time to Lessee time be permitted, or Lessee's trusteerecoverable, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor any portion of Lessee's interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, assignee for the benefit of creditors Code or any other person or entity, by operation of law or otherwise under the laws of any state having jurisdiction Applicable Laws of the person or property State of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consentCalifornia.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 2 contracts
Samples: Office Lease (Eargo, Inc.), Office Lease (Eargo, Inc.)
Bankruptcy or Insolvency. (ia) If Lessee shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee or Lessee's trustee shall fail to elect to assume this Lease within 60 days after the filing of such petition or such additional time as provided by the courtcourt within such 60-day period, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(ivb) Neither the whole nor any portion of Lessee's interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, conservator, 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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consent.
(vc) In the event of an assignment of Lessee's interests pursuant to this SectionSection 7.02, the right of any assignee to extend the Lease Term for an Extended Term beyond the Primary Term or the then Extended Term of this Lease shall be extinguished.
Appears in 2 contracts
Samples: Lease Agreement (Ceres Group Inc), Lease Agreement (Point 360)
Bankruptcy or Insolvency. In no event shall this Lease be assigned or assignable by operation of law and in no event shall this Lease be an asset of Tenant in any receivership, bankruptcy, insolvency or reorganization proceeding. In the event:
(ia) If Lessee shall become A court makes or enters any decree or order adjudging Tenant to be insolvent, or approving as properly filed by or against Tenant a debtor in a case filed petition seeking reorganization or other arrangement of Tenant under Chapter 7 or Chapter 11 any provisions of the Bankruptcy Code or any applicable state law, or directing the winding up or liquidation of Tenant and Lessee such decree or Lessee's trustee order shall fail to elect to assume this Lease within 60 days after the filing have continued for a period of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor's right to be compensated for damages thirty (including, without limitation, liquidated damages pursuant to any provision hereof30) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.days;
(iib) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise Tenant makes or suffers any and all remedies available to it if, at transfer which constitutes a fraudulent or otherwise avoidable transfer under any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 provisions of the Bankruptcy Code.Code or any applicable state law;
(iiic) When, pursuant to the Bankruptcy Code, Lessee's trustee or the debtor-in-possession shall be obligated to pay reasonable use and occupancy charges Tenant assigns its assets for the use benefit of its creditors; or
(d) The material part of the Premises, such charges shall not be less than the Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor property of Tenant or any portion property essential to Tenant's business or of LesseeTenant's interest in this Lease is sequestered, attached or its estate executed upon, and Tenant fails to secure a return or release of such property within ten (10) days thereafter, or prior to sale pursuant to such sequestration, attachment or levy, whichever is earlier; then this Lease shall, at Landlord's election, immediately terminate and be of no further force or effect whatsoever, without the necessity for any further action by Landlord, except that Tenant shall not be relieved of obligations which have accrued prior to the date of such termination. Upon such termination, the provisions herein relating to the expiration or earlier termination of this Lease shall control and Tenant shall immediately surrender the Premises in the Premises condition required by the provisions of this Lease. Additionally, landlord shall pass be entitled to any trusteeall relief, receiverincluding recovery of damages from Tenant, assignee for which may from time to time be permitted, or recoverable, under the benefit of creditors Bankruptcy Code or any other person or entity, by operation of law or otherwise under the laws of any applicable state having jurisdiction of the person or property of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consentlaws.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 2 contracts
Samples: Master Lease Agreement (Adforce Inc), Master Lease Agreement (Adforce Inc)
Bankruptcy or Insolvency. (ia) If Lessee 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 5.2(b) and 5.2(d) are satisfied as if the election to assume were made in a case filed under Chapter 11 of the Bankruptcy Code and Lessee Code. If Tenant or LesseeTenant's trustee shall fail to elect to assume this Lease within 60 days after the filing of such petition or such additional time as provided by the courtcourt within such 60-day period, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor thereupon Landlord shall be entitled to possession of the Premises without further obligation to Lessee Tenant or LesseeTenant's trustee, trustee and this Lease, Lease upon the election of Lessor, Landlord shall terminate, but LessorLandlord'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.
(iii) An assumption of this Lease In the event that Tenant shall become a debtor in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has a case filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to or in a case filed under Chapter 7 of the Bankruptcy CodeCode which is transferred to Chapter 11, LesseeTenant'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 obligated deemed to pay reasonable use 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:
(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 hereinafter defined) that it will cure all Events of Default susceptible of being cured by the payment of money within 10 days from the date of such assumption and occupancy charges 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.
(2) Tenant's trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with Assurance that within 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.
(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 (i) deposit with Landlord, as security for the use timely payment of rent hereunder, an amount equal to 1 advance installment (in addition to the Premisesinstallment then due as a result Basic Rent being payable in advance pursuant to subitem (ii) below) of Basic Rent (at the rate then payable) which shall be applied to installments of Basic 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, (ii) agree that from and after such charges date all Basic Rent shall not be less due and payable in advance (rather than in arrears) on each Payment Date, and (iii) pay in advance to Landlord on the date each installment of Basic Rent, Rent is payable a pro rata share of Tenant's annual obligations for Additional Rent and other sums payable 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 Lessee this Section shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
(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.
(ii) For purposes of this Section 5.2, 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 (ivx) Neither there shall have been deposited with Landlord, or the whole nor any portion of LesseeBankruptcy Court shall have entered an order segregating, sufficient cash payable to Landlord, and/or (y) Tenant's trustee or the debtor-in-possessionshall have granted a valid and perfected first lien and security interest and/or mortgage 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 LesseeTenant, unless Lessor shall have consented Tenant's trustee or the debtor-in-possession, acceptable as to such transfer. No acceptance by Lessor value and kind to Landlord, to secure to Landlord the obligation of rent Tenant, Tenant's trustee or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed the debtor-in-possession to constitute such consent by Lessor nor shall it be deemed a waiver cure the Events of Lessor's right to terminate this Lease for any transfer of Lessee's interest Default under this Lease without such consentLease, monetary and/or non-monetary, within the time periods set forth above.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 2 contracts
Samples: Lease Agreement (Maxxam Inc), Lease Agreement (Maxxam Inc)
Bankruptcy or Insolvency. Subject to applicable Law, Landlord and Tenant acknowledge and agree that (i) If Lessee the provisions of this Section 22.01 shall control notwithstanding anything to the contrary contained in this Lease, and (ii) with respect to the rights of Tenant and Landlord in any bankruptcy or insolvency proceeding relating to Tenant, this Lease shall be interpreted as if each of the Premises were subject to a separate lease on terms and conditions identical to those set forth in this Lease and the Annual Rent allocable to the Premises covered by each separate lease and each such separate lease providing that a default under any such separate lease constitutes a default under all other such separate leases.
(a) In the event that Tenant shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code Reform Act of 1978, 11 U.S.C. 1 et seq (“Bankruptcy Code”), and Lessee Tenant’s trustee or Lessee's trustee Tenant shall fail to 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 this Section 22.01 are satisfied. If Tenant or Tenant’s trustee shall fail to assume this Lease within 60 sixty (60) days after the filing entry of such petition or such additional time as provided by the courtan order for relief, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor thereupon Landlord shall be entitled to possession of each of the Premises without further obligation to Lessee Tenant or Lessee's trustee, Tenant’s trustee and this Lease, upon the election of LessorLandlord, shall terminate, but Lessor's 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.
(iib) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare In the event that a voluntary petition for reorganization is filed by Tenant, or an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee involuntary petition is liquidated or files or has filed against it a subsequent petition Tenant under Chapter 7 or Chapter 11 of the Bankruptcy Code.
, or in the event of the entry of an order for relief under Chapter 7 in a case which is then transferred to Chapter 11, Tenant’s trustee or Tenant, as debtor-in-possession, must elect to assume this Lease within sixty (iii60) Whendays from the date of the filing of the petition under Chapter 11 or the transfer thereto, pursuant to the Bankruptcy Code, Lessee's or Tenant’s trustee or the debtor-in-possession shall be obligated deemed to pay reasonable use and occupancy charges for the use have rejected this Lease. Immediately thereupon Landlord shall be entitled to possession of each of the PremisesPremises without further obligation to Tenant or Tenant’s trustee and this Lease, such charges upon the election of Landlord, shall terminate, but Landlord’s right to be compensated for damages, shall survive, whether or not this Lease shall be less than terminated.
(c) No election by Tenant’s trustee or the Basic Rentdebtor-in-possession to assume this Lease, Additional Rent and other sums payable by Lessee whether under Chapter 7 or Chapter 11, shall be effective unless each of the following conditions has been satisfied:
(i) Tenant’s trustee or the debtor-in-possession has cured all defaults under this Lease, or has provided Landlord with evidence satisfactory to Landlord that it will cure all defaults 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 defaults under this Lease which are susceptible of being cured by the performance of any act within thirty (30) days after the date of such assumption.
(ii) Tenant’s trustee or the debtor-in-possession has compensated, or has provided Landlord with evidence satisfactory to Landlord that, within ten (10) days from the date of such assumption, that 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.
(iii) Tenant’s trustee or the debtor-in-possession (A) has provided Landlord with “Assurance”, as hereinbelow defined, of the future performance of each of the obligations under this Lease of Tenant, Tenant’s trustee, or the debtor-in-possession, and (B) shall, in addition to any other security deposits held by Landlord, deposit with Landlord, as security for the timely payment of Annual Rent and for the performance of all other obligations of Tenant under this Lease, an amount equal to three (3) monthly installments of Annual Rent (at the rate then payable), and (C) pay in advance to Landlord on the date each installment of Annual Rent is due and payable, one-twelfth of Tenant’s annual obligations for Impositions to be made by Tenant pursuant to this Lease. The obligations imposed upon Tenant’s trustee or the debtor-in-possession by this Section 22.01 shall continue with respect to Tenant or any assignee of this Lease, after the conclusion of proceedings under the Bankruptcy Code.
(iv) Neither the whole nor Such assumption will not breach or cause a default under any portion provision of Lessee'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 entitylease, by operation of law or otherwise under the laws of any state having jurisdiction of the person or property of Lesseemortgage, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person financing agreement or other entity shall be deemed agreement by which Landlord is bound, relating to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consentthe Premises.
(vd) In the event For purposes of an assignment of Lessee's interests pursuant to this SectionSection 22.01(c)(iii) hereof, the right of any assignee to extend the Lease Term Landlord and Tenant shall be extinguished.acknowledge that “Assurance” shall mean no less than:
Appears in 2 contracts
Samples: Master Lease (American Restaurant Group Inc), Master Lease (American Restaurant Group Inc)
Bankruptcy or Insolvency. (ia) If Lessee shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee or Lessee's trustee shall fail to elect to assume this Lease within 60 days after the filing of such petition or such additional time as provided by the courtcourt within such 60-day period, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(ivb) Neither the whole nor any portion of Lessee's interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, conservator, 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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consent.
(vc) In the event of an assignment of Lessee's interests pursuant to this SectionSection 7.02, the right of any assignee to extend the Lease Term for an Extended Term beyond the Primary Term or the then Extended Term of this Lease shall be extinguished.
Appears in 2 contracts
Samples: Contribution Agreement (Boise Cascade Holdings, L.L.C.), Contribution Agreement (Boise Cascade Holdings, L.L.C.)
Bankruptcy or Insolvency. (i) If Lessee shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee or Lessee's trustee shall fail to elect to assume this Lease within 60 days after the filing of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor any portion of Lessee's Tenant’s interest in this Lease or its , nor any interest therein of Tenant nor any estate hereby created in the Premises Tenant, shall pass to any trustee, receiver, trustee or receiver or assignee for the benefit of creditors or any other person or entity, otherwise by operation of law law. In the event the estate created in Tenant hereby shall be taken, in execution or otherwise under by other process of law; or if Tenant shall be adjudicated insolvent or bankrupt pursuant to the laws provisions of any state having jurisdiction or federal insolvency or bankruptcy act, or if a receiver or trustee of the person or property of LesseeTenant shall be appointed by reason of the insolvency or inability of Tenant to pay its debts, or if any assignment shall be made of the property of Tenant for the benefit of creditors, then and in any such events, Landlord may at its option terminate this Lease and all rights of Tenant hereunder, by giving to Tenant notice in writing of the election of Landlord to so terminate, in which event this Lease shall cease and terminate with the same force and effect as though the date set forth in said notice were the date originally set forth herein and fixed for the expiration of the term of this Lease, and Tenant shall vacate and surrender the Premises but shall remain liable as herein provided. Tenant shall not cause or give cause for the institution of legal proceedings seeking to have Tenant adjudicated bankrupt, reorganized or rearranged under the bankruptcy laws of the United States, and shall not cause or give cause for the appointment of a trustee or receiver for the assets of Tenant and shall not make any assignment for the benefit of creditors, or become or be adjudicated insolvent. The allowance of any petition under the bankruptcy law, or the appointment of a trustee or receiver of Tenant, or its assets, shall be conclusive evidence that Tenant caused, or gave cause therefor, unless Lessor shall have consented to such transfer. No acceptance by Lessor allowance of rent the petition, or any other payments from any such trustee, the appointment of a trustee or receiver, assignee, person is vacated within thirty (30) days after such allowance or other entity appointment. Any act described in this Section 23 shall be deemed a material breach of Tenant’s obligation hereunder, and upon such breach by Tenant, Landlord may, at its option and in addition to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right any other remedy available to Landlord, terminate this Lease and all rights of Tenant hereunder, by giving to Tenant notice in writing of the election of Landlord to so terminate. Notwithstanding anything to the contrary contained in this Section 23, in the event, for any transfer reason whatsoever, the interest of Lessee's interest under Tenant in this Lease without is subject to assignment or sale by the Bankruptcy Court, then, and in that event, all proceeds of such consentsale or assignment shall be paid to Landlord and not to Tenant nor to the bankruptcy estate. Neither Tenant’s interest in this Lease, nor any estate hereby created in Tenant nor any interest herein or therein, shall pass to any trustee or receiver or assignee for the benefit of creditors or otherwise by operation of law, except as may specifically be provided pursuant to the Bankruptcy Code (11 USC §101 et. seq.
(v) In ), as the same may be amended from time to time. It is understood and agreed that this Lease is a lease of real property as such lease is described in Section 365 of the Bankruptcy Code, as the same may be amended from time to time. Upon the filing of a petition by or against Tenant under the Bankruptcy Code, Tenant, as debtor and as debtor-in-possession, and any trustee who may be appointed with respect to the assets of or estate in bankruptcy of Tenant, agree to pay monthly in advance on the first day of each month, as reasonable compensation for the use and occupancy of the Premises, an amount equal to all Base Rent and other charges otherwise due pursuant to this Lease. Included within and in addition to any other conditions or obligations imposed upon Tenant or its successor in the event of an the assumption and/or assignment of Lessee's interests pursuant to this Section, Lease are the right following: (i) the cure of any assignee monetary defaults and reimbursement of pecuniary loss within not more than thirty (30) days of assumption and/or assignment; (ii) the deposit of an additional sum equal to extend not less than three (3) months’ Base Rent to be held by Landlord as a security deposit, which sum shall be determined by Landlord, in its sole discretion, to be a necessary deposit to secure the future performance under the Lease Term shall be extinguishedof Tenant or its assignee; (iii) the use of the Premises as set forth in Section 8 of this Lease are unchanged; and (iv) the prior written consent of any mortgagee to which this Lease has been assigned as collateral security.
Appears in 1 contract
Bankruptcy or Insolvency. It is understood and agreed that the following shall apply in the event of the bankruptcy or insolvency of Tenant:
(ia) If Lessee shall become a debtor in a case petition is filed by, or an order for relief is entered against Tenant under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee the trustee of Tenant elects to assume this Lease for the purpose of assigning it, such election or Lesseeassignment, or both, may be made only if all of the terms and conditions of subparagraphs (b) and (d) below are satisfied. To be effective, an election to assume this Lease must be in writing and addressed to Landlord, and in Landlord's business judgment, all of the conditions hereinafter stated, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied. If the trustee shall fail fails so to elect to assume this Lease within 60 sixty (60) days after the filing of such petition or such additional time as provided by the courthis appointment, this Lease shall will be deemed to have been rejected. Immediately thereupon, Lessor and Landlord shall then immediately be entitled to possession of the Premises without further obligation to Lessee Tenant or Lessee's trustee, the trustee and this Lease, upon the election of Lessor, Lease shall terminate, but Lessorbe terminated. Landlord's right to be compensated for damages (includingin the bankruptcy proceeding, without limitationhowever, liquidated damages pursuant to any provision hereof) or the exercise of any other remedies in any shall survive such proceeding shall survive, whether or not this Lease shall be terminatedtermination.
(iib) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated If Tenant files a petition for reorganization under Chapters 11 or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 13 of the Bankruptcy Code.
(iii) When, pursuant to or if a proceeding filed by or against Tenant under any other chapter of the Bankruptcy CodeCode is converted to a Chapter 11 or 13 proceeding and Tenant's trustee or Tenant as debtor-in-possession fails to assume this Lease within sixty (60) days from the date of the filing of such petition or conversion, Lessee's then the trustee or the debtor-in-possession shall be obligated deemed to pay reasonable use and occupancy charges for the use have rejected this Lease. To be effective any election to assume this Lease must be in writing addressed to Landlord and, in Landlord's business judgment, all of the Premisesfollowing conditions, such charges shall not which Landlord and Tenant acknowledge to be less than commercially reasonable, must have been satisfied:
(i) The trustee or the Basic Rentdebtor-in-possession has cured or has provided to Landlord adequate assurance, Additional Rent and other sums payable by Lessee as defined in this subparagraph (b), that:
(1) The trustee will cure all monetary defaults under this LeaseLease within ten (10) days from the date of assumption and
(2) The trustee will cure all nonmonetary defaults under this Lease within thirty (30) days from the date of assumption.
(ivii) Neither The trustee or the whole nor any portion debtor-in-possession has compensated Landlord, or has provided Landlord with adequate assurance, as hereinafter defined, that within ten (10) days from the date of Lessee's interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, assignee assumption Landlord will be compensated 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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consent.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.any
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Bankruptcy or Insolvency. (i) If Lessee Any resolution shall be passed or any action shall be taken by any Obligor for the termination, winding up, liquidation or dissolution of any Obligor or its debts, or any Obligor shall make an assignment for the benefit of creditors, become insolvent or be unable to pay (or admit in writing its inability to pay) any of its debts as they mature, or any Obligor shall file a debtor petition in voluntary liquidation or bankruptcy, or any Obligor shall file a case filed petition or answer or consent seeking reorganization or the readjustment of any of its debt under Chapter 7 applicable insolvency or Chapter 11 bankruptcy laws now or hereafter existing, or any Obligor shall consent to the appointment of any receiver, administrator, liquidator, custodian or trustee of all or any part of its property or assets, or corporate action shall be taken by any Obligor for the purpose of effecting any of the Bankruptcy Code and Lessee or Lessee's trustee shall fail to elect to assume this Lease within 60 days after the filing of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.foregoing; or
(ii) An assumption By order or decree of this Lease any court of competent jurisdiction, any Obligor shall be adjudicated a bankrupt or insolvent, or a petition for proceedings in accordance with Section 7.02(f)(i) bankruptcy or liquidation or for the reorganization or the readjustment of its debt under applicable bankruptcy or insolvency laws now or hereafter existing shall be filed against any Obligor, and any Obligor shall admit the material allegations thereof, or shall not limit Lessor's right cause such petition to declare an Event of Default hereunder and exercise be discharged within thirty (60) days, or any and all remedies available to it if, at any time after such assumption, Lessee is liquidated order judgment or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee's trustee or the debtor-in-possession decree shall be obligated to pay reasonable use made approving such petition and occupancy charges for the use of the Premisessuch order, such charges judgment or decree shall not be less than the Basic Rentvacated, Additional Rent and other sums payable by Lessee under this Lease.
set aside or stayed within thirty (iv60) Neither the whole nor days of their issuance or any portion of Lessee's interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, assignee administrator, liquidator or trustee shall be appointed for the benefit of creditors any Obligor or for all or any other person or entity, by operation part of law or otherwise under the laws of any state having jurisdiction of the person or its property of Lessee, unless Lessor shall have consented to and such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assigneeadministrator, person liquidator or other entity trustee shall not be deemed to constitute such consent by Lessor nor discharged or his jurisdiction shall it not be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consent.
relinquished, vacated or stayed, on appeal or otherwise, within thirty (v60) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.days after his appointment; or
Appears in 1 contract
Samples: Loan and Security Agreement (Boron Lepore & Associates Inc)
Bankruptcy or Insolvency. (i) If In the event that Lessee shall become a debtor in a case filed under Chapter 7 of the Bankruptcy Code and Xxxxxx's trustee or Lessee shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may be made only if all of the provisions of Paragraphs 19(b) and 19(d) are satisfied as if the election to assume were made in a case filed under Chapter 11 of the Bankruptcy Code and Code. If Lessee or LesseeXxxxxx's trustee shall fail to elect to assume this Lease within 60 120 days after the filing of such petition or such additional time as provided by the courtcourt within such 120-day period, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be thereupon immediately entitled to possession of the Premises without further obligation to Lessee or LesseeXxxxxx's trustee, trustee and this Lease, upon the election of Lessor, shall terminate, but LessorXxxxxx's right to be compensated for damages (including, without limitation, liquidated damages pursuant to any provision hereofparagraphs 18(f) and (g)) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.
(iii) An assumption of this Lease In the event that Lessee shall become a debtor in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has a case filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code, or in a case filed under Chapter 7 of the Bankruptcy Code which is transferred to Chapter 11, the trustee or Lessee, 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 the trustee or debtor-in-possession shall be deemed to have rejected this Lease. In the event that Xxxxxx, Xxxxxx's trustee or Lessee as debtor-in-possession has failed to perform all of Lessee's obligations under this Lease within the time periods (excluding grace periods) required for such performance, no election by the trustee or debtor-in-possession to assume this Lease shall be permitted or effective unless each of the following conditions have been satisfied:
(1) Trustee or debtor-in-possession has cured, or has provided Lessor with Assurance (as defined below) that it will cure (i) all monetary defaults under this Lease within 10 days from the date of such assumption and (ii) all nonmonetary defaults under this Lease within 30 days from the date of such assumption.
(iii2) WhenTrustee or debtor-in-possession has compensated Lessor, pursuant or has provided Lessor with Assurance that within 10 days from the date of assumption Lessor will be compensated, for any pecuniary loss incurred by Lessor arising from the default of Lessee, trustee, or debtor-in-possession indicated in any statement of pecuniary loss sent by Lessor to the Bankruptcy Code, Lessee's trustee or debtor-in-possession.
(3) Trustee or the debtor-in-possession has provided Lessor with Assurance of the future performance of each of Lessee's, trustee's or debtor-in-possession's obligations under this Lease and, in addition, trustee or debtor-in-possession shall be obligated to pay reasonable use and occupancy charges (i) deposit with Lessor, as security for the use timely payment of the Premisesrent, such charges shall not be less than the an amount equal to 3 months' Basic Rent, Additional and (ii) pay in advance to Lessor on the date Basic Rent is payable, one-twelfth of Lessee's annual obligations under this Lease for real estate taxes, insurance and all other sums payable payments to be made by Lessee under pursuant to this Lease. The obligations imposed upon the trustee or debtor-in-possession shall continue with respect to Lessee or any assignee of the Lease after the completion of bankruptcy proceedings.
(iv4) Neither the whole nor any portion The assumption of Lessee's interest in this Lease will not breach any provision in any other lease, Mortgage, financing agreement or its estate in other agreement by which Lessor is bound relating to the Premises shall pass to any trustee, receiver, assignee for the benefit of creditors or any other person or entity, by operation larger development of law or otherwise under which the laws of any state having jurisdiction of the person or property of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed Premises is a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consentpart.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Bankruptcy or Insolvency. (i) If Lessee Any resolution shall become a debtor in a case filed under Chapter 7 be passed or Chapter 11 any action shall be taken by the Company or any Subsidiary for the termination, winding up, liquidation or dissolution of the Bankruptcy Code and Lessee Company, any Subsidiary or Lessee's trustee any of their debts, or the Company or any Subsidiary shall fail make an assignment for the benefit of creditors, become insolvent or be unable to elect pay (or admit in writing its inability to assume this Lease within 60 days after pay) any of its debts as they mature, or the filing of such Company or any Subsidiary shall file a petition in voluntary liquidation or bankruptcy, or the Company or any Subsidiary shall file a petition or such additional time as provided answer or consent seeking reorganization or the readjustment of any of its debts under applicable insolvency or bankruptcy laws now or hereafter existing, or the Company or any Subsidiary shall consent to the appointment of any receiver, administrator, liquidator, custodian or trustee of all or any material part of its property or assets, or corporate action shall be taken by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession Company or any Subsidiary for the purpose of effecting any of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.foregoing; or
(ii) An assumption By order or decree of this Lease any court of competent jurisdiction, the Company or any Subsidiary shall be adjudicated as bankrupt or insolvent, or a petition for proceedings in accordance with Section 7.02(f)(i) bankruptcy or liquidation or for the reorganization or the readjustment of its debt under applicable bankruptcy or insolvency laws now or hereafter existing shall be filed against the Company or any Subsidiary, and the Company or any Subsidiary shall admit the material allegations thereof; or shall not limit Lessor's right cause such petition to declare an Event of Default hereunder and exercise be discharged within forty-five (45) days, or any and all remedies available to it if, at any time after such assumption, Lessee is liquidated order judgment or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee's trustee or the debtor-in-possession decree shall be obligated to pay reasonable use made approving such petition and occupancy charges for the use of the Premisessuch order, such charges judgment or decree shall not be less than the Basic Rentvacated, Additional Rent and other sums payable by Lessee under this Lease.
set aside or stayed within forty-five (iv45) Neither the whole nor days of their issuance or any portion of Lessee's interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, assignee administrator, liquidator or trustee shall be appointed for the benefit of creditors Company or any other person Subsidiary or entity, by operation of law or otherwise under the laws of any state having jurisdiction of the person or property of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent for all or any other payments from any part of its property and such trustee, receiver, assigneeadministrator, person liquidator or other entity trustee shall not be deemed to constitute such consent by Lessor nor discharged or his jurisdiction shall it not be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consent.
relinquished, vacated or stayed, on appeal or otherwise, within forty-five (v45) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.days after his appointment;
Appears in 1 contract
Samples: Debenture Purchase Agreement
Bankruptcy or Insolvency. A. Events of Bankruptcy -------------------- The following shall be Events of Bankruptcy under this Lease:
(i1) If Lessee shall become Xxxxxx's becoming insolvent, as that term is defined in Title 11 of the United States Code, entitled Bankruptcy, 11 U.S.C., Para. 101 et seq. (The "Bankruptcy Code"), or under the applicable insolvency laws of any State, District, Commonwealth or Territory of the United States ("Insolvency Laws");
(2) 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;
(3) The filing of a voluntary petition under Chapter 7 or Chapter 11 the provisions of the Bankruptcy Code and Lessee or Lessee's trustee shall fail to elect to assume this Lease within 60 days after the Insolvency Laws;
(4) The filing of such an involuntary petition against Tenant as the subject debtor under the Bankruptcy Code or such additional time as provided by Insolvency Laws, which is either not dismissed within sixty (60) days of filing, or results in the courtissuance of an order for relief against the debtor, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.whichever is later; or
(ii5) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit LessorXxxxxx's right making or consenting to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor any portion of Lessee's interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, assignee assignment for the benefit of creditors or any other person or entity, by operation a common law composition of law or otherwise creditors.
B. Landlord's Remedies -------------------
(1) Termination of Lease --------------------
(1) shall have no effect while a case in which Tenant is the subject debtor under the laws of any state having jurisdiction of the person or property of LesseeBankruptcy Code is pending, unless Lessor Tenant or its Trustee in bankruptcy is unable to comply with the provisions of subparagraphs B.(4) and B.(5) hereof; otherwise this Lease shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trusteeautomatically cease and terminate, receiver, assignee, person or other entity and Tenant shall be deemed immediately obligated to constitute such consent by Lessor nor shall it be deemed a waiver quit the premises upon the giving of Lessornotice pursuant to this subparagraph B.
(1). Any other notice to quit or notice of Xxxxxxxx's right intention to reenter is hereby expressly waived. If Landlord elects to terminate this Lease for any transfer of Lessee's interest under Lease, everything contained in this Lease on the part of Landlord to be done and performed shall cease without prejudice; however, such consent.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, termination shall not effect the right of Landlord to recover from Tenant all rental and any assignee other sums accrued up to extend the Lease Term shall be extinguishedtime of termination or recovery of possession by Landlord, whichever is later, and any other monetary damages or loss of reserved rental sustained by Landlord.
Appears in 1 contract
Samples: Letter Agreement on Administration of Building Common Areas (Opnet Technologies Inc)
Bankruptcy or Insolvency. In no event shall this Lease be assigned or assignable by operation of law and in no event shall this Lease be an asset of Tenant in any receivership, bankruptcy, insolvency, or reorganization proceeding. In the event:
(ia) If Lessee shall become A court makes or enters any decree of order adjudging Tenant to be insolvent, or approving as properly filed by or against Tenant a debtor in a case filed petition seeking reorganization or other arrangement of Tenant under Chapter 7 or Chapter 11 any provisions of the Bankruptcy Code or any Applicable Laws, or directing the winding up or liquidation of Tenant and Lessee such decree or Lessee's trustee order shall fail to elect to assume this Lease within 60 days after the filing have continued for a period of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor's right to be compensated for damages thirty (including, without limitation, liquidated damages pursuant to any provision hereof30) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.days;
(iib) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise Tenant makes or suffers any and all remedies available to it if, at transfer which constitutes a fraudulent or otherwise avoidable transfer under any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 provisions of the Bankruptcy Code.Code or any applicable state law;
(iiic) When, pursuant to the Bankruptcy Code, Lessee's trustee or the debtor-in-possession shall be obligated to pay reasonable use and occupancy charges Tenant assigns its assets for the use benefit of its creditors; or
(d) The material part of the Premises, such charges shall not be less than the Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor property of Tenant or any portion property essential to Tenant's business or of LesseeTenant's interest in this Lease is sequestered, attached or its estate executed upon, and Tenant fails to secure a return or release of such property within ten (10) days thereafter, or prior to sale pursuant to such sequestration, attachment or whichever is earlier; then this Lease shall, at Landlord's election, immediately terminate and be of no further force of effect whatsoever, without the necessity for any further action by Landlord, except that Tenant shall not be relieved of obligations which have accrued prior to the date of such termination. Upon such termination, the provisions herein relating to the expiration or earlier termination of this Lease shall control and Tenant shall immediately surrender the Premises in the Premises condition required by the provisions of this Lease. Additionally, Landlord shall pass be entitled to any trusteeall relief, receiverincluding recovery of damages from Tenant, assignee for which may from time to time be permitted, or recoverable, under the benefit of creditors Bankruptcy Code 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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consentApplicable Laws.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Samples: Lease (Broadcom Corp)
Bankruptcy or Insolvency. (ia) If Lessee In the event that Tenant shall become a debtor in a case filed Debtor under Chapter 7 or Chapter 11 of the Bankruptcy Code Code, and Lessee Trustee or Lessee's trustee Tenant shall fail to elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may only be made if all of the terms and conditions of this Lease are satisfied. If such Trustee shall fail to elect or assume this Lease within 60 sixty (60) days after the filing of such petition or such additional time as provided by the courtPetition, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor Landlord shall be thereupon immediately entitled to possession of the Premises without further obligation to Lessee Tenant or Lessee's trusteeTrustee, and this Lease, upon the election of Lessor, Lease shall terminatebe canceled, but LessorLandlord'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.
(b) In the event that a Petition for reorganization or adjustment of debts is filed concerning Tenant under Chapters 11 or 13 of the Bankruptcy Code, or a proceeding is filed under Chapter 7 of the Bankruptcy Code and is transferred to Chapters 11 or 13, the Trustee or Tenant, as Debtor-In-Possession, must elect to assume this Lease within seventy-five (75) days from the date of the filing of the Petition under Chapters 11 or 13, or the Trustee or Debtor-In-Possession shall be deemed to have rejected this Lease. No election by the Trustee or Debtor-In-Possession to assume this Lease, whether under Chapters 7, 11, or not this Lease 13, shall be terminatedeffective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable in the context of a bankruptcy proceeding of Tenant, have been satisfied, and Landlord has so acknowledged in writing:
(i) The Trustee or the Debtor-In-Possession has cured, or has provided Landlord adequate assurance that:
(1) Within ten (10) days from the date of such assumption the Trustee will cure all monetary defaults under this Lease; and
(2) Within thirty (30) days from the date of such assumption the Trustee will cure all non-monetary defaults under this Lease.
(ii) An The Trustee or the Debtor-In-Possession has compensated, or has provided to Landlord adequate assurance that within ten (10) days from the date of assumption Landlord will be compensated for any pecuniary loss incurred by Landlord arising from the default of Tenant, the Trustee, or the Debtor-In-Possession as recited in Landlord's written statement of pecuniary loss sent to the Trustee or Debtor-In-Possession.
(iii) The Trustee or the Debtor-In-Possession has provided Landlord with adequate assurance of the future performance of each of Tenant's, Trustee's or Debtor-In-Possession's obligations under this Lease; provided, however, that:
(1) The Trustee or Debtor-In-Possession shall also deposit with Landlord, as security for the timely payment of rent, an amount equal to three (3) months' rent and other monetary charges accruing under this Lease; and
(2) If not otherwise required by the terms of this Lease, the Trustee or Debtor-In-Possession shall also pay in advance on the date minimum rent is payable one-twelfth (1/12th) of Tenant's annual obligations under this Lease for maintenance, common area charges, real estate taxes, insurance and similar charges;
(3) From and after the date of the assumption of this Lease, the Trustee or Debtor-In-Possession shall pay as minimum rent an amount equal to the sum of the minimum rental otherwise payable hereunder, plus the highest amount of the annual percentage rent paid by Tenant to Landlord within the five (5) year period prior to the date of Tenant's Petition under the Bankruptcy Code, which amount shall be payable in advance in equal monthly installments on the date minimum rent is payable;
(4) The obligations imposed upon the Trustee or Debtor-In-Possession shall continue with respect to Tenant or any assignee of the Lease in accordance with after the completion of bankruptcy proceedings.
(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 Section 7.02(f)(i13.03 (b) shall not limit Lessor's right to declare an Event of Default hereunder hereof and exercise any and all remedies available to it if, at any time after such assumption, Lessee thereafter Tenant is liquidated or files or has filed against it a subsequent petition Petition for reorganization or adjustment of debts under Chapter 7 Chapters 11 or Chapter 11 13 of the Bankruptcy Code, then, and in either of such events, Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder, by giving Tenant written notice of its election to so terminate, by no later than thirty (30) days after the occurrence of either of such events.
(iiid) When, pursuant to the Bankruptcy Code, Lessee's trustee the Trustee or the debtorDebtor-inIn-possession Possession shall be obligated to pay reasonable use and occupancy charges for the use of the PremisesPremises or any portion thereof, such charges shall not be less than the Basic Rent, Additional Rent minimum annual rent as defined in this Lease and other sums monetary obligations of Tenant for the payment of maintenance, common area charges, real estate taxes, insurance and other charges payable by Lessee under this LeaseTenant hereunder.
(ive) Neither the whole nor any portion of LesseeTenant's interest in this Lease or its the Lease, nor any lesser interest of Tenant herein, nor any estate in the Premises of Tenant hereby created, shall pass to any trustee, receiver, assignee for the benefit of creditors creditors, or any other person or entity, or otherwise by operation of law or otherwise under the laws of any state having jurisdiction of the person or property of Lessee, Tenant (hereinafter referred to as the "state Law") unless Lessor Landlord shall have consented consent to such transfertransfer in writing. No acceptance by Lessor 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 Lessor have waived, nor shall it be deemed a waiver of Lessorwaive Landlord's right to terminate this Lease nor the need to obtain Landlord's consent for any transfer of LesseeTenant's interest under this Lease without such consent.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Samples: Shopping Center Lease (Chicago Pizza & Brewery Inc)
Bankruptcy or Insolvency. (ia) If Lessee shall become a debtor in a case petition is filed by, or an order for relief is entered against Tenant under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee the trustee of Tenant elects to assume this Lease for the purpose of assigning it, such election or Lesseeassignment, or both, may be made only if all of the terms and conditions of subparagraphs (b) and (d) below are satisfied. To be effective, an election to assume this Lease must be in writing and addressed to Landlord, and in Landlord's business judgment, all of the conditions hereinafter stated, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied. If the trustee shall fail fails so to elect to assume this Lease within 60 sixty (60) days after the filing of such petition or such additional time as provided by the courthis appointment, this Lease shall will be deemed to have been rejected. Immediately thereupon, Lessor and Landlord shall then immediately be entitled to possession of the Premises without further obligation to Lessee Tenant or Lessee's trustee, the trustee and this Lease, upon the election of Lessor, Lease shall terminate, but Lessorbe terminated. Landlord's right to be compensated for damages (includingin the bankruptcy proceeding, without limitationhowever, liquidated damages pursuant to any provision hereof) or the exercise of any other remedies in any shall survive such proceeding shall survive, whether or not this Lease shall be terminatedtermination.
(iib) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated If Tenant files a petition for reorganization under Chapters 11 or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 13 of the Bankruptcy Code.
(iii) When, pursuant to or if a proceeding filed by or against Tenant under any other chapter of the Bankruptcy CodeCode is converted to a Chapter 11 or 13 proceeding and Tenant's trustee or Tenant as debtor-in-possession fails to assume this Lease within sixty (60) days from the date of the filing of such petition or conversion, Lessee's then the trustee or the debtor-in-possession shall be obligated deemed to have rejected this Lease. To be effective any election to assume this Lease must be in writing addressed to Landlord and, in Landlord's business judgment, all of the following conditions, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied:
(1) The trustee or the debtor-in-possession has cured or has provided to Landlord adequate assurance, as defined in this subparagraph (b), that:
a. The trustee will cure all monetary defaults under this Lease within ten (10) days from the date of assumption
b. The trustee will cure all nonmonetary defaults under this Lease within thirty (30) days from the date of assumption.
(2) The trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with adequate assurance, as hereinafter defined, that within ten (10) days from the date of assumption Landlord will be compensated for any pecuniary loss it has incurred arising from the default of Tenant, the trustee, or the debtor-in-possession, as recited in Landlord's written statement of pecuniary loss sent to the trustee or debtor-in-possession.
(3) The trustee or the debtor-in-possession has provided Landlord with adequate assurance of the future performance of each of Tenant's obligations under this Lease; provided, however, that:
a. From and after the date of assumption of this Lease, the trustee or the debtor-in-possession shall pay reasonable use the Base and occupancy charges Additional Rents payable under this Lease in advance in equal monthly installments on each date that such Rents are payable.
b. The trustee or debtor-in-possession shall also deposit with Landlord, as security for the use timely payment of the Premises, such charges shall not be less than the Basic Rent, Additional an amount equal to three (3) months' Base Rent and other sums payable by Lessee monetary charges accruing under this Lease.;
c. If not otherwise required by the terms of this Lease, the trustee or the debtor-in-possession shall also pay in advance, on each day that any installment of Base Rent is payable, one-twelfth (iv1/12) Neither the whole nor any portion of LesseeTenant's interest in this Lease or its estate in the Premises shall pass to any trusteeannual Taxes, receiverOperating Expenses, assignee for the benefit of creditors or any and other person or entity, by operation of law or otherwise under the laws of any state having jurisdiction of the person or property of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest obligations under this Lease without such consentLease; and
d. The obligations imposed upon the trustee or the debtor- in-possession will continue for Tenant after the completion of bankruptcy proceedings.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Samples: Lease (Wam Net Inc)
Bankruptcy or Insolvency. (i) If Lessee the Tenant shall become a debtor in a case filed under Chapter 7 neglect or Chapter 11 fail to perform or observe any of the Bankruptcy Code and Lessee covenants, conditions or Lessee's trustee shall fail to elect to assume this Lease within 60 days after obligations on the filing part of such the Tenant herein contained or observed; or if any petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereuponfiled by or against Tenant under any Bankruptcy or Insolvency Law, Lessor now or hereinafter enacted, State or Federal; or if the estate hereby created shall be entitled to possession of attached or taken by legal process; or if the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, Tenant shall terminate, but Lessor'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare make an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor any portion of Lessee's interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, assignee assignment for the benefit of its creditors by way of trust mortgage, judicial proceedings, or otherwise; or if a receiver, trustee or similar officer shall be appointed to take charge of any part of the Tenant's property; then and in any of such events notwithstanding any waiver or license of any former breach and without prejudice to any other person or entity, by operation of law or otherwise under remedy which the laws of any state having jurisdiction of the person or property of Lessee, unless Lessor shall Landlord may have consented to such transfer. No acceptance by Lessor for arrears of rent or otherwise, Landlord may, without demand or notice, enter into and upon the Demised Premises, or any other payments from any such trusteepart thereof, receiverin the name of the whole, assigneeand repossess the same as of its former estate, person and expel the Tenant and those claiming by, through or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver under it, and remove its or their goods and effects, forcibly if necessary, and may store the same in the name and at the expense of Lessor's right to terminate the Tenant, and upon entry as aforesaid this Lease shall terminate. Such entry may be effected by written notice to Tenant to the same effect as actual entry for any transfer breach of Lessee's interest under this Lease without such consent.
(v) condition. In the event of an assignment of Lessee's interests pursuant to this Sectionsuch termination, the right Tenant covenants and agrees to indemnify and hold harmless the Landlord from and against any and all loss of any assignee rent, damages and other expenses, including reasonable attorneys' fees, brokerage, and costs of reletting incurred by the Landlord by reason of such termination, from time to extend time, upon demand of the Lease Term Landlord. The Tenant further agrees that it will, upon demand, pay to the Landlord in the event of such termination a sum equal to the amount by which the rent and other charges herein reserved for the balance of the term hereinabove specified exceeds the fair market rental value of the premises for the balance of said term. Credit shall be extinguished.given to the liability of Tenant to indemnify Landlord under this paragraph 20 for any payments made under the preceding sentence. Prior to termination of this Lease by Landlord by reason of Tenant's default, Landlord shall give Tenant ten (10) days written notice with respect to any payment of money and fifteen (15) days written notice in all other events, provided that if by reason of the nature of the default the same cannot be reasonably cured within said fifteen (15) day period, Tenant shall not be deemed in default, if Tenant shall
Appears in 1 contract
Samples: Lease (Viasat Inc)
Bankruptcy or Insolvency. The Landlord and Tenant acknowledge and agree that the provisions of this Section 34 shall control notwithstanding anything to the contrary contained herein.
(ia) If Lessee In the event that Tenant shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code Reform Act of 1978, 11 U.S.C. A. §§701 to 784 (Bankruptcy Code) and Lessee Tenant’s trustee or Lessee's 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 this Section 34 are satisfied. If Tenant or Tenant’s trustee shall fail to elect to assume this Lease within 60 days after the filing entry of such petition or such additional time as provided by the courtan order for relief, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor Landlord shall be entitled to possession of the Leased Premises without further obligation to Lessee Tenant or Lessee's trustee, Tenant’s trustee and this Lease, upon the election of LessorLandlord, shall terminate, but Lessor's Landlord’s right to be compensated for damages (including, without limitation, liquidated damages pursuant to any provision hereof) Section 19 or the exercise of any other remedies in any such proceeding proceeding) shall survive, whether or not this Lease shall be terminated.
(iib) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare In the event that a voluntary petition for reorganization is filed by Tenant, or an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee involuntary petition is liquidated or files or has filed against it a subsequent petition Tenant under Chapter 7 or Chapter 11 of the Bankruptcy Code, or in the event of the entry of an order for relief under Chapter 7 in a case which is then transferred to Chapter 11, Tenant’s trustee or Tenant, as debtor-in-possession, must elect to assume this Lease within 60 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. Immediately thereupon, Landlord shall be entitled to possession of the Leased Premises 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 Section 19 or the exercise of any other remedies in any such proceeding) shall survive, whether or not this Lease shall be terminated.
(c) No election by Tenant’s trustee or the debtor-in-possession to assume this Lease, whether under Chapter 7 or Chapter 11, shall be effective unless each of the following conditions has been satisfied:
(i) Tenant’s trustee or the debtor-in-possession has cured all defaults under this Lease, or has provided Landlord with evidence satisfactory to Landlord that it will cure all defaults susceptible of being cured by the payment of money within 10 days from the date of such assumption, and that it will cure all other defaults under this Lease which are susceptible of being cured by the performance of any act within 30 days after the date of such assumption.
(ii) Tenant’s trustee or the debtor-in-possession has compensated, or has provided Landlord with evidence satisfactory to Landlord that, within 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.
(iii) Tenant’s trustee or the debtor-in-possession (A) has provided Landlord with Assurance, as hereinbelow defined, of the future performance of each of the obligations under this Lease of Tenant, Tenant’s trustee, or the debtor-in-possession, and (B) shall, in addition to any other security deposits held by Landlord, deposit with Landlord, as security for the timely payment of Minimum Rental and for the performance of all other obligations of Tenant under this Lease, an amount equal to 3 monthly installments of Minimum Rental and any percentage rental payable under this Lease (both at the rate then payable), and (C) pay in advance to Landlord on the date each installment of Minimum Rental is due and payable, one-twelfth of Tenant’s annual obligations for Impositions and insurance premiums to be made by Tenant pursuant to this Lease. The obligations imposed upon Tenant’s trustee or the debtor-in-possession by this Section 34 shall continue with respect to Tenant or any assignee of this Lease, after the conclusion of proceedings under the Bankruptcy Code.
(iv) Such assumption will not breach or cause a default under any provision of any other lease, Mortgage, financing agreement, or other agreement by which Landlord or the Superior Lessor is bound, relating to the Leased Premises or any larger development of which the Leased Premises is a part.
(d) For purposes of subsection (c)(iii) of this Section 34, Landlord and Tenant acknowledge that Assurance shall mean no less than: (i) 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 (ii) to secure to Landlord the obligations of Tenant, Tenant’s trustee, or the debtor-in-possession, and to assure the ability of Tenant, Tenant’s trustee, or the debtor-in-possession to cure the defaults under this Lease, monetary and/or non-monetary, there shall have been: (A) sufficient cash deposited with Landlord, or (B) the Bankruptcy Court shall have entered an order segregating sufficient cash payable to Landlord, and/or (C) Tenant’s trustee or the debtor-in-possession shall have granted to Landlord a valid and perfected first lien and security interest and/or mortgage in properly of Tenant, Tenant’s trustee, or the debtor-in-possession, acceptable as to value and kind to Landlord.
(e) In the event that this Lease is assumed in accordance with subsection (b) of this Section 34 and thereafter Tenant is liquidated or files, or has filed against it, a subsequent petition under any provision of the Bankruptcy Code or any similar statute for relief of debtors, 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 30 days after the occurrence of either of such events.
(f) If Tenant’s trustee or the debtor-in-possession has assumed this Lease pursuant to the terms and provisions of this Section 34 for the purpose of assigning (or elects to assign) this Lease, this Lease may be so assigned only if the proposed 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 consideration for such assignment, whether cash or otherwise. As used in this subsection (f) of this Section 34 “adequate assurance of future performance” shall mean at least that clauses (B) and (C) of subsection (c)(iii) of this Section 34, and each of the following conditions, has been satisfied:
(i) The proposed assignee has furnished Landlord with a current financial statement audited by a certified public accountant, determined in accordance with generally accepted accounting principles consistently applied, indicating a credit rating, net worth, and working capital in amounts which Landlord reasonably determines to be sufficient to assure the future performance of such assignee of Tenant’s obligations under this Lease, but in no event indicating a net worth less than the net worth of the Tenant and any Guarantors of this Lease, on the date of execution hereof.
(ii) Such assignment will not breach or cause a default under any provision of any other lease, Mortgage, financing agreement, or other agreement by which Landlord or the Superior Lessor is bound, relating to the Leased Premises or any larger development of which the Leased Premises is a part.
(iii) The proposed assignment will not release or impair any Guarantee under this Lease.
(g) When, pursuant to the Bankruptcy Code, Lessee's Tenant’s trustee or the debtor-in-possession shall be obligated to pay reasonable use and occupancy charges for the use of the Leased Premises, such charges shall not be less than the Basic Rent, Additional Rent Minimum Rental and other sums all additional rent payable by Lessee Tenant under this Lease, and shall be paid at the times and when due as though such charges were Minimum Rental and additional rent.
(ivh) Neither Anything in this Lease to the contrary notwithstanding, neither the whole nor any portion of Lessee's Tenant’s interest in this Lease or its estate in the Leased Premises shall pass to any trustee, receiver, assignee for the benefit of creditors creditors, or any other similar person or entity, or otherwise by operation of law under the Bankruptcy Code or otherwise any similar federal statute now or hereinafter enacted, or under the laws of any state having jurisdiction of the person or property of LesseeTenant, unless Lessor Landlord shall have consented to such transfertransfer in writing. No acceptance by Lessor Landlord of rent or any other payments from any such trustee, receiver, assignee, person person, or other entity shall be deemed to constitute such consent by Lessor Landlord, nor shall it be deemed a waiver of Lessor's Landlord’s right to terminate this Lease for any transfer of Lessee's Tenant’s interest under this Lease without such consent.
(vi) Anything in this Lease to the contrary notwithstanding, Tenant covenants and agrees that this Lease is an extension of financial benefits and accommodations to Tenant which are uniquely personal in nature, and such financial benefits and accommodations are a material inducement for Landlord’s execution and delivery of this Lease, and are an integral part of the consideration for this Lease.
(j) Notwithstanding anything in this Lease to the contrary, and as a material inducement for Landlord’s execution and delivery of this Lease, and the extension of financial benefits and accommodations uniquely personal to Tenant, Tenant covenants and agrees for itself, its successors, and assigns, that it will maintain at all times a net worth, determined in accordance with generally accepted accounting principles consistently applied, of not less than the net worth so determined of Tenant and any Guarantors of this Lease on the date of execution hereof. Failure to comply with the provisions of this subsection (j) of Section 34 shall be deemed a default relating to a monetary obligation, as that term is used in Section 19 of this Lease, entitling Landlord to the remedies therein provided.
(k) In the event of an assignment assumption or assignment, or both, of Lessee's Tenant’s interests pursuant to this SectionSection 34, the right of any assignee to extend the term of this Lease for an Extended Term beyond the then term of this Lease shall be extinguished.
Appears in 1 contract
Samples: Agreement to Sell, Purchase and Lease (First National Bancshares Inc /Sc/)
Bankruptcy or Insolvency. (i) 15.1. If Lessee at any time prior to the Commencement Date or during the Term, there shall become a debtor be filed by or against Tenant in a case filed under Chapter 7 or Chapter 11 any court pursuant to any statute either of the Bankruptcy Code and Lessee United States or Lesseeof any state, a petition in bankruptcy or insolvency or for reorganization or arrangement, or for the appointment of a receiver or trustee of all or a portion of Tenant's trustee property, or if Tenant makes an assignment for the benefit or creditors or if there is an assignment by operation of law, or if Tenant makes application to Tenant's creditors to settle or compound or extend the time for payment of Tenant obligations, or if any execution or attachment shall fail be levied upon any of Tenant's property or the Premises are taken or occupied or attempted to elect to assume be taken or occupied by someone other than Tenant, then this Lease within 60 days after may be terminated and declared null and void at the filing sole option of such petition Landlord. Upon the happening of Tenant's bankruptcy, insolvency, or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession any of the Premises without further obligation to Lessee or Lessee's trusteecontingencies herein enumerated, and whether or not Landlord elects to terminate this Lease, upon the election of Lessor, shall terminate, but Lessor's right to be compensated for damages (including, without limitation, liquidated damages pursuant Landlord may apply any security deposit under this Lease to any provision hereof) arrears in rent and a judicial stay shall not have the effect of terminating this option. In the event of a judicial stay or the exercise an order of any other remedies in any such proceeding shall survivecourt authorizing Tenant, whether or not this Lease shall be terminated.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it ifReceiver, at any time after such assumptionDebtor‑in-Possession, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) WhenTrustee, pursuant to the Bankruptcy CodeExaminer, Lessee's trustee or the debtor-in-possession shall be obligated to pay reasonable use and occupancy charges Assignee for the use Benefit of Creditors, or any other person to remain in possession of the Premises, Landlord shall be entitled be paid a total sum in exchange for such use and occupation in the amount of the rent and other charges reserved in this Lease, or the fair market value of the Premises, whichever is higher. The acceptance by the Landlord of rent for use and occupation shall not be less than deemed an election to affirm or agree to the Basic Rent, Additional Rent and other sums payable by Lessee under this assumption of the Lease.
(iv) Neither the whole nor any portion . Failure of Lessee's interest in Landlord to elect to terminate this Lease or its estate in the Premises shall pass to during 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 one of the person proceedings or property of Lesseecontingencies herein set forth, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it not be deemed a waiver of Lessorthat right in the same or any future proceedings. The exercise of the option to terminate the Lease shall not defeat the Landlord's right to terminate this Lease damages for any transfer of Lessee's interest under this Lease without such consentall losses sustained.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Caresource Holdings, Inc.)
Bankruptcy or Insolvency. (i) If Lessee shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee or Lessee's trustee shall fail to elect to assume this Lease within 60 sixty (60) days after the filing of such petition or such additional time as provided by the courtcourt within such sixty (60) day period, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) . Neither the whole nor any portion of Lessee's interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, conservator, 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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consent.
(v) . In the event of an assignment of Lessee's interests pursuant to this SectionSection 7.2, the right of any assignee to extend the Lease Term for an Extended Term beyond the Primary Term or the then Extended Term of this Lease shall be extinguished.
Appears in 1 contract
Bankruptcy or Insolvency. (ia) If Lessee Tenant shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee Tenant or LesseeTenant's trustee shall fail to elect to assume this Lease within 60 days after the filing of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor Landlord shall be entitled to possession of the Premises without further obligation to Lessee Tenant or LesseeTenant's trustee, and this Lease, upon the election of LessorLandlord, shall terminate, but LessorLandlord'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(ivb) Neither the whole nor any portion of LesseeTenant's interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, conservator, 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 LesseeTenant, unless Lessor Landlord shall have consented to such transfertransfer or such transfer is permitted under this Lease. No acceptance by Lessor 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 Lessor Landlord nor shall it be deemed a waiver of LessorLandlord's right to terminate this Lease for any transfer of LesseeTenant's interest under this Lease without such consent.
(vc) In the event of an assignment of LesseeTenant's interests pursuant to this SectionSection 7.02, the right of any assignee to extend the Lease Term for an Extended Term beyond the Primary Term or the then Extended Term of this Lease shall be extinguished.
Appears in 1 contract
Samples: Lease Agreement (A21 Inc)
Bankruptcy or Insolvency. (ia) If Lessee 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 5.2(b) and 5.2(d) are satisfied as if the election to assume were made in a case filed under Chapter 11 of the Bankruptcy Code and Lessee Code. If Tenant or LesseeTenant's trustee shall fail to elect to assume this Lease within 60 days after the filing of such petition or such additional time as provided by the courtcourt within such 60-day period, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor thereupon Landlord shall be entitled to possession of the Premises without further obligation to Lessee Tenant or LesseeTenant's trustee, trustee and this Lease, Lease upon the election of Lessor, Landlord shall terminate, but LessorLandlord'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.
(iii) An assumption of this Lease In the event that Tenant shall become a debtor in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has a case filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to or in a case filed under Chapter 7 of the Bankruptcy CodeCode which is transferred to Chapter 11, LesseeTenant'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 obligated deemed to pay reasonable use 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:
(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 hereinafter defined) that it will cure all Events of Default susceptible of being cured by the payment of money within 10 days from the date of such assumption and occupancy charges 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.
(2) Tenant's trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with Assurance that within 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.
(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 (i) deposit with Landlord, as security for the use timely payment of rent hereunder, an amount equal to one (1) advance installment (in addition to the Premisesinstallment then due as a result Basic Rent being payable in advance pursuant to subitem (ii) below) of Basic Rent (at the rate then payable) which shall be applied to installments of Basic 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, (ii) agree that from and after such charges date all Basic Rent shall not be less due and payable in advance (rather than in arrears) on each Payment Date, and (iii) pay in advance to Landlord on the date each installment of Basic Rent, Rent is payable a pro rata share of Tenant's annual obligations for Additional Rent and other sums payable 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 Lessee this Section shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
(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.
(ii) For purposes of this Section 5.2, 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 (ivx) Neither there shall have been deposited with Landlord, or the whole nor any portion of LesseeBankruptcy Court shall have entered an order segregating, sufficient cash payable to Landlord, and/or (y) Tenant's trustee or the debtor-in-possession shall have granted a valid and perfected first lien and security interest and/or mortgage 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 LesseeTenant, unless Lessor shall have consented Tenant's trustee or the debtor-in-possession, acceptable as to such transfer. No acceptance by Lessor value and kind to Landlord, to secure to Landlord the obligation of rent Tenant, Tenant's trustee or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed the debtor-in-possession to constitute such consent by Lessor nor shall it be deemed a waiver cure the Events of Lessor's right to terminate this Lease for any transfer of Lessee's interest Default under this Lease without such consentLease, monetary and/or non-monetary, within the time periods set forth above.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Bankruptcy or Insolvency. In no event shall this Lease be assigned or assignable by operation of law and in no event shall this Lease be an asset of Tenant in any receivership, bankruptcy, insolvency or reorganization proceeding. In the event:
(ia) If Lessee shall become A court makes or enters any decree or order adjudging Tenant to be insolvent, or approving as properly filed by or against Tenant a debtor in a case filed petition seeking reorganization or other arrangement of Tenant under Chapter 7 or Chapter 11 any provisions of the Bankruptcy Code or any applicable state law, or directing the winding up or liquidation of Tenant and Lessee such decree or Lessee's trustee order shall fail to elect to assume this Lease within 60 days after the filing have continued for a period of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor's right to be compensated for damages thirty (including, without limitation, liquidated damages pursuant to any provision hereof30) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.days;
(iib) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise Tenant makes or suffers any and all remedies available to it if, at transfer which constitutes a fraudulent or otherwise avoidable transfer under any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 provisions of the Bankruptcy Code.Code or any applicable state law;
(iiic) When, pursuant to the Bankruptcy Code, Lessee's trustee or the debtor-in-possession shall be obligated to pay reasonable use and occupancy charges Tenant assigns its assets for the use benefit of its creditors; or
(d) The material part of the Premises, such charges shall not be less than the Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor property of Tenant or any portion property essential to Tenant's business or of LesseeTenant's interest in this Lease is sequestered, attached or its estate executed upon, and Tenant fails to secure a return or release of such property within ten (10) days thereafter, or prior to sale pursuant to such sequestration, attachment or levy, whichever is earlier. Then this Lease shall, at Landlord's election, immediately terminate and be of no further force or effect whatsoever, without the necessity for any further action by Landlord, except that Tenant shall not be relieved of obligations which have accrued prior to the date of such termination. Upon such termination, the provisions herein relating to the expiration or earlier termination of this Lease shall control and Tenant shall immediately surrender the Premises in the Premises condition required by the provisions of this Lease. Additionally, Landlord shall pass be entitled to any trusteeall relief, receiverincluding recovery of damages from Tenant, assignee for which may from time to time be permitted, or recoverable, under the benefit of creditors Bankruptcy Code or any other person or entity, by operation of law or otherwise under the laws of any applicable state having jurisdiction of the person or property of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consentlaws.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Bankruptcy or Insolvency. In no event shall this Lease be assigned or assignable by operation of law and in no event shall this Lease be an asset of Tenant in any receivership, bankruptcy, insolvency or reorganization proceeding. In the event:
(ia) If Lessee shall become A court makes or enters any decree or order adjudging Tenant to be insolvent, or approving as properly filed by or against Tenant a debtor in a case filed petition seeking reorganization or other arrangement of Tenant under Chapter 7 or Chapter 11 any provisions of the Bankruptcy Code or any applicable state law, or directing the winding up or liquidation of Tenant and Lessee such decree or Lessee's trustee order shall fail to elect to assume this Lease within 60 days after the filing have continued for a period of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor's right to be compensated for damages thirty (including, without limitation, liquidated damages pursuant to any provision hereof30) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminateddays.
(iib) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise Tenant makes or suffers any and all remedies available to it if, at transfer which constitutes a fraudulent or otherwise avoidable transfer under any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 provisions of the Bankruptcy Code.Code or any applicable state law;
(iiic) When, pursuant to the Bankruptcy Code, Lessee's trustee or the debtor-in-possession shall be obligated to pay reasonable use and occupancy charges Tenant assigns its assets for the use benefit of its creditors; or
(d) The material part of the Premises, such charges shall not be less than the Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor property of Tenant or any portion property essential to Tenant's business or of LesseeTenant's interest in this Lease is sequestered, attached or its estate executed upon, and Tenant fails to secure a return or release of such property within thirty (30) days thereafter, or prior to sale pursuant to such sequestration, attachment or levy, whichever is earlier; then this Lease shall, at Landlord's election, immediately terminate and be of no further force or effect whatsoever, without the necessity for any further action by Landlord, except that Tenant shall not be relieved of obligations which have accrued prior to the date of such termination. Upon such termination, the provisions herein relating to the expiration or earlier termination of this Lease shall control and Tenant shall immediately surrender the Premises in the Premises condition required by the provisions of this Lease. Additionally, Landlord shall pass be entitled to any trusteeall relief, receiverincluding recovery of damages from Tenant, assignee for which may from time to time be permitted, or recoverable, under the benefit of creditors Bankruptcy Code or any other person or entity, by operation of law or otherwise under the laws of any applicable state having jurisdiction of the person or property of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consentlaws.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Samples: Lease Agreement (Cardima Inc)
Bankruptcy or Insolvency. It is understood and agreed that the following shall apply in the event of the bankruptcy or insolvency of Xxxxxx:
(i) If a petition is filed by, or an order for relief is entered against Lessee shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the United States Bankruptcy Code (the "Bankruptcy Code") and the trustee for Lessee elects to assume this Lease for the purpose of assigning it, such election or Lesseeassignment, or both, may be made only if all of the terms and conditions of subparagraphs (ii) and (iv) below are satisfied. To be effective, an election to assume this Lease must be in writing and addressed to Xxxxxx, and, in Xxxxxx's business judgment, all of the conditions hereinafter stated, which Lessor and Xxxxxx acknowledge to be commercially reasonable, must have been satisfied. If the trustee shall fail fails so to elect to assume this Lease within 60 sixty (60) days after the filing of such petition or such additional time as provided by the courthis appointment, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor and Xxxxxx shall then immediately be entitled to possession of the Premises leased premises without further obligation to Lessee or Lessee's pr the trustee, and this Lease, upon the election of Lessor, Lease shall terminate, but be terminated. Lessor's right to be compensated for damages (includingin the bankruptcy proceeding, without limitationhowever, liquidated damages pursuant to any provision hereof) or the exercise of any other remedies in any shall survive such proceeding shall survive, whether or not this Lease shall be terminatedtermination.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, If Lessee is liquidated files a petition for reorganization under Chapters 11 or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 13 of the Bankruptcy Code., or if a proceeding filed by or against Lessee under any other chapter of the Bankruptcy Code is converted to a Chapter 11 or 13 proceeding, and Xxxxxx's trustee or Lessee as debtor-in-possession fails to assume this Lease within sixty (60) days from the date of the filing of such petition or conversion, then the trustee or the debtor-in- possession shall be deemed to have rejected this Lease. To be effective, any election to assume this Lease must be in writing addressed to Xxxxxx and, in Xxxxxx's business judgment, all of the following conditions, which Lessor and Xxxxxx acknowledge to be commercially reasonable, must have been satisfied:
(iiia) When, pursuant to the Bankruptcy Code, Lessee's The trustee or the debtor-in-possession has cured all defaults hereunder or, with respect to defaults that the trustee or debtor-in-possession has not cured, has provided to Lessor adequate assurance, as defined in this Subparagraph (ii), that:
(1) The trustee or debtor-in-possession will cure all monetary defaults under this Lease within ten (10) days from the date of assumption; and
(2) The trustee or debtor-in-possession will cure all non-monetary defaults under this Lease within thirty (30) days from the date of assumption.
(b) The trustee or the debtor-in-possession has compensated Lessor, or has provided Lessor with adequate assurance, as hereinafter defined, that within ten (10) days from the date of assumption, Lessor will be compensated for any pecuniary loss it has incurred arising from the default of Lessee, the trustee, or the debtor-in-possession, as recited in the Lessor's written statement of pecuniary loss sent to the trustee or debtor-in-possession.
(c) The trustee or the debtor-in-possession has provided Lessor with adequate assurance of the future performance of each of Xxxxxx's obligations under this Lease; provided, however, that:
(1) From and after the data of assumption of this Lease, the trustee or the debtor-in- possession shall be obligated to pay reasonable use the fixed minimum rent payable under this Lease in advance in equal monthly installments on each date that such fixed minimum rent is payable and occupancy charges shall pay all additional rent payable hereunder when due;
(2) The trustee or debtor-in-possession shall also deposit with Lessor, as security for the use timely payment of the Premisesrent, such charges shall not be less than the Basic Rent, Additional Rent an amount equal to three months fixed minimum rent and other sums payable monetary charges accruing under this Lease;
(3) If not otherwise required by the terms of this Lease, the trustees or the debtor-in- possession shall pay in advance, on each day that any installment of fixed minimum rent is payable, one-twelfth of Lessee's pro rata share of operating expenses and other obligations of Lessee under this Lease; and
(4) The obligations imposed upon the trustee or the debtor-in-possession will continue for Lessee after the completion of bankruptcy proceedings.
(ivd) Neither the whole nor any portion For purposes of Lessee's interest in this Lease or its estate in the Premises shall pass to any trusteesubparagraph (ii), 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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consent.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished."adequate assurance" means that:
Appears in 1 contract
Samples: Office Lease Agreement (Alliance Data Systems Corp)
Bankruptcy or Insolvency. (i) If Lessee shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee or Lessee's ’s trustee shall fail to elect to assume this Lease within 60 days after the filing of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's ’s trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's ’s right to declare an Event of of. Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee's ’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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor any portion of Lessee's ’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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's ’s right to terminate this Lease for any transfer of Lessee's ’s interest under this Lease without such consent.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Samples: Lease Agreement (Inamed Corp)
Bankruptcy or Insolvency. (ia) If Lessee Tenant shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee Tenant or Lessee's Tenant’s trustee shall fail to elect to assume this Lease within 60 sixty (60) days after the filing of such petition or such additional time as provided by the courtcourt within such 60-day period, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor Landlord shall be entitled to possession of the Premises without further obligation to Lessee Tenant or Lessee's Tenant’s trustee, and this Lease, upon the election of LessorLandlord, shall terminate, but Lessor's 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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(ivb) Neither the whole nor any portion of Lessee's Tenant’s interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, conservator, 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 LesseeTenant, unless Lessor Landlord shall have consented to such transfer. No acceptance by Lessor 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 Lessor Landlord nor shall it be deemed a waiver of Lessor's Landlord’s right to terminate this Lease for any transfer of Lessee's Tenant’s interest under this Lease without such consent.
(vc) In the event of an assignment of Lessee's Tenant’s interests pursuant to this SectionSection 12.02, the right of any assignee to extend the Lease Term for an Extended Term beyond the Initial Term or the then current Extended Term of this Lease shall be extinguished.
Appears in 1 contract
Bankruptcy or Insolvency. (ia) If Lessee shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee or Lessee's ’s trustee shall fail to elect to assume this Lease within 60 days after the filing of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejectedrejected at Lessor’s option. Immediately thereupon, Lessor shall be entitled to possession of the Premises Property or Properties without further obligation to Lessee or Lessee's ’s trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(ivb) Neither the whole nor any portion of Lessee's ’s interest in this Lease or its estate in the Premises Properties shall pass to any trustee, receiver, conservator, 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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's ’s right to terminate this Lease for any transfer of Lessee's ’s interest under this Lease without such consent.
(vc) In the event of an assignment of Lessee's ’s interests pursuant to this SectionSection 7.02, the right of any assignee to extend the Lease Term shall be extinguishedfor any Extended Term.
Appears in 1 contract
Samples: Master Lease Agreement (NorthStar Healthcare Investors, Inc.)
Bankruptcy or Insolvency. In no event shall this Lease be assigned or assignable by operation of law and in no event shall this Lease be an asset of Tenant in any receivership, bankruptcy, insolvency or reorganization proceeding. If:
(ia) If Lessee shall become A court makes or enters any decree or order adjudging Tenant to be insolvent, or approving as properly filed by or against Tenant a debtor in a case filed petition seeking reorganization or other arrangement of Tenant under Chapter 7 or Chapter 11 any provisions of the Bankruptcy Code or any Applicable Law of the State of California, or directing the winding up or liquidation of Tenant and Lessee such decree or Lessee's trustee order shall fail have continued for a period of thirty (30) days;
(b) Tenant makes or suffers any transfer which constitutes a fraudulent or otherwise avoidable transfer under any provisions of the Bankruptcy Code or any Applicable Law of the State of California;
(c) Tenant assigns its assets for the benefit of its creditors; or
(d) The material part of the property of Tenant or any property essential to elect to assume Xxxxxx’s business or of Tenant’s interest in this Lease within 60 days after the filing is sequestered, attached or executed upon, and Tenant fails to secure a return or release of such petition property within ten (10) days thereafter, or prior to sale pursuant to such additional time as provided sequestration, attachment or levy, whichever is earlier; then this Lease shall, at Xxxxxxxx’s election, immediately terminate and be of no further force or effect whatsoever, without the necessity for any further action by Landlord, except that Tenant shall not be relieved of obligations which have accrued prior to the courtdate of such termination. Upon such termination, the provisions herein relating to the expiration or earlier termination of this Lease shall be deemed to have been rejectedcontrol and Tenant shall immediately surrender the Premises in the condition required by the provisions of this Lease. Immediately thereuponAdditionally, Lessor Landlord shall be entitled to possession all relief, including recovery of the Premises without further obligation damages from Tenant, which may from time to Lessee time be permitted, or Lessee's trusteerecoverable, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor any portion of Lessee's interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, assignee for the benefit of creditors Code or any other person or entity, by operation of law or otherwise under the laws of any state having jurisdiction Applicable Laws of the person or property State of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consentCalifornia.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Bankruptcy or Insolvency. (i) If Lessee In no event shall become this Lease be assigned or assignable by operation of law and in no event shall this Lease be an asset of Tenant in any receivership, bankruptcy, insolvency or reorganization proceeding. If: A court makes or enters any decree or order adjudging Tenant to be insolvent, or approving as properly filed by or against Tenant a debtor in a case filed petition seeking reorganization or other arrangement of Tenant under Chapter 7 or Chapter 11 any provisions of the Bankruptcy Code and Lessee or Lessee's trustee shall fail to elect to assume this Lease within 60 days after the filing of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession any Applicable Law of the Premises without further obligation to Lessee State of California, or Lessee's trustee, directing the winding up or liquidation of Tenant and this Lease, upon the election such decree or order shall have continued for a period of Lessor, shall terminate, but Lessor's right to be compensated for damages thirty (including, without limitation, liquidated damages pursuant to 30) days; Tenant makes or suffers any provision hereof) transfer which constitutes a fraudulent or the exercise of otherwise avoidable transfer under any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 provisions of the Bankruptcy Code.
(iii) When, pursuant to Code or any Applicable Law of the Bankruptcy Code, Lessee's trustee or the debtor-in-possession shall be obligated to pay reasonable use and occupancy charges State of California; Tenant assigns its assets for the use benefit of its creditors; or The material part of the Premises, such charges shall not be less than the Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor property of Tenant or any portion property essential to Tenant's business or of LesseeTenant's interest in this Lease is sequestered, attached or its estate executed upon, and Tenant fails to secure a return or release of such property within ten (10) days thereafter, or prior to sale pursuant to such sequestration, attachment or levy, whichever is earlier; then this Lease shall, at Landlord's election, immediately terminate and be of no further force or effect whatsoever, without the necessity for any further action by Landlord, except that Tenant shall not be relieved of obligations which have accrued prior to the date of such termination. Upon such termination, the provisions herein relating to the expiration or earlier termination of this Lease shall control and Tenant shall immediately surrender the Premises in the Premises condition required by the provisions of this Lease. Additionally, Landlord shall pass be entitled to any trusteeall relief, receiverincluding recovery of damages from Tenant, assignee for which may from time to time be permitted, or recoverable, under the benefit of creditors Bankruptcy Code or any other person or entity, by operation of law or otherwise under the laws of any state having jurisdiction Applicable Laws of the person or property State of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consentCalifornia.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Samples: Office Lease (8x8 Inc /De/)
Bankruptcy or Insolvency. (i) If Lessee Any resolution shall be passed or any action shall be taken by any Obligor for the termination, winding up, liquidation or dissolution of any Obligor or its debts, or any Obligor shall make an assignment for the benefit of creditors, become insolvent or be unable to pay (or admit in writing its inability to pay) any of its debts as they mature, or any Obligor shall file a debtor petition in voluntary liquidation or bankruptcy, or any Obligor shall file a case filed petition or answer or consent seeking reorganization or the readjustment of any of its Debt under Chapter 7 applicable insolvency or Chapter 11 bankruptcy laws now or hereafter existing, or any Obligor shall consent to the appointment of any receiver, administrator, liquidator, custodian or trustee of all or any part of its property or assets, or corporate action shall be taken by any Obligor for the purpose of effecting any of the Bankruptcy Code and Lessee or Lessee's trustee shall fail to elect to assume this Lease within 60 days after the filing of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.foregoing; or
(ii) An assumption By order or decree of this Lease any court of competent jurisdiction, any Obligor shall be adjudicated a bankrupt or insolvent, or a petition for proceedings in accordance with Section 7.02(f)(i) bankruptcy or liquidation or for the reorganization or the readjustment of its Debt under applicable bankruptcy or insolvency laws now or hereafter existing shall be filed against any Obligor, and any Obligor shall admit the material allegations thereof, or shall not limit Lessor's right cause such petition to declare an Event of Default hereunder and exercise be discharged within sixty (60) days, or any and all remedies available to it iforder (other than a final, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee's trustee or the debtornon-in-possession appealable order for which there shall be obligated to pay reasonable use no grace period), judgment or decree shall be made approving such petition and occupancy charges for the use of the Premisessuch order, such charges judgment or decree shall not be less than the Basic Rentvacated, Additional Rent and other sums payable by Lessee under this Lease.
set aside or stayed within sixty (iv60) Neither the whole nor days of their issuance or any portion of Lessee's interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, assignee administrator, liquidator or trustee shall be appointed for the benefit of creditors any Obligor or for all or any other person or entity, by operation part of law or otherwise under the laws of any state having jurisdiction of the person or its property of Lessee, unless Lessor shall have consented to and such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assigneeadministrator, person liquidator or other entity trustee shall not be deemed to constitute such consent by Lessor nor discharged or his jurisdiction shall it not be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consent.
relinquished, vacated or stayed, on appeal or otherwise, within sixty (v60) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.days after his appointment; or
Appears in 1 contract
Samples: Loan and Security Agreement (Forward Industries Inc)
Bankruptcy or Insolvency. The Landlord and Tenant acknowledge and agree that the provisions of this Section 33 shall control notwithstanding anything to the contrary contained herein.
(ia) If Lessee In the event that Tenant shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee Tenant's trustee or LesseeTenant 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 this Section 33 are satisfied. If Tenant or Tenant's trustee shall fail to elect to assume this Lease within 60 days after the filing entry of such petition or such additional time as provided by the courtan order for relief, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor thereupon Landlord shall be entitled to possession of the Leased Premises without further obligation to Lessee Tenant or LesseeTenant's trustee, trustee and this Lease, upon the election of LessorLandlord, shall terminate, but LessorLandlord's right to be compensated for damages (including, without limitation, liquidated damages pursuant to any provision hereof) Section 19 or the exercise of any other remedies in any such proceeding proceeding) shall survive, whether or not this Lease shall be terminated.
(iib) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare In the event that a voluntary petition for reorganization is filed by Tenant, or an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee involuntary petition is liquidated or files or has filed against it a subsequent petition Tenant under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant or in the event of the entry of an order for relief under Chapter 7 in a case which is then transferred to Chapter 11, Tenant's trustee or Tenant, as debtor-in-possession must elect to assume this Lease within 60 days from the Bankruptcy Codedate of the filing of the petition under Chapter 11 or the transfer thereto, Lesseeor Tenant's trustee or the debtor-in-possession shall be obligated deemed to pay reasonable use and occupancy charges for the use have rejected this Lease. Immediately thereupon Landlord shall be entitled to possession of the PremisesLeased Premises 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 Section 19 or the exercise of any other remedies in any such charges proceeding) shall survive, whether or not this Lease shall be less than terminated.
(c) No election by Tenant's trustee or the Basic Rentdebtor-in-possession to assume this Lease, Additional Rent and other sums payable by Lessee whether under Chapter 7 or Chapter 11, shall be effective unless each of the following conditions has been satisfied:
(i) Tenant's trustee or the debtor-in-possession has cured all defaults under this Lease, or has provided Landlord with evidence satisfactory to Landlord that it will cure all defaults susceptible of being cured by the payment of money within 10 days from the date of such assumption and that it will cure all other defaults under this Lease which are susceptible of being cured by the performance of any act within 30 days after the date of such assumption.
(ivii) Neither Tenant's trustee or the whole nor debtor-in-possession has compensated, or has provided Landlord with evidence satisfactory to Landlord that, within 10 days from the date of such assumption, it will compensate Landlord for any portion actual pecuniary loss incurred by Landlord arising from the default of LesseeTenant, Tenant's interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, assignee for or 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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consent.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.debtor-in-possession as
Appears in 1 contract
Samples: Lease (Kellstrom Industries Inc)
Bankruptcy or Insolvency. Section 20.1. If any transfer of Tenant’s interest in the premises is made under execution or similar legal process, or if a petition is filed by or against Tenant to adjudicate Tenant a bankrupt or insolvent under any federal or state law, or if a receiver or trustee is appointed for Tenant’s business or property and such appointment is not vacated within thirty (i30) If Lessee shall become days, or if a debtor petition is filed by or against Tenant under any provision of federal or state law for a corporate reorganization of Tenant or an arrangement with creditors, or if Tenant makes an assignment or deed of trust for the benefit of its creditors, or if in a case filed any other manner Tenant’s interest under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee or Lessee's trustee shall fail to elect to assume this Lease within 60 days after shall pass to another by operation of law, then, Tenant shall be deemed to have committed a material breach of this Lease, and Landlord may, at its option, terminate this Lease and reenter the filing premises; but, notwithstanding such termination. Tenant shall remain liable for all rent and damages which may be due at the time of such petition or such additional time as provided by termination and for the court, liquidated damages set forth in Section 21.3 of this Lease. Nothing contained in this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of preclude Landlord from obtaining the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor's right to be compensated for damages (including, without limitation, liquidated damages pursuant to any provision hereof) or the exercise of any other remedies maximum amount recoverable from Tenant under law in any such proceeding shall survive, whether or not this Lease shall be terminated.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right referred to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor any portion of Lessee's interest in this Lease or its estate Section; and Tenant hereby covenants that 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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consent.
(v) In the event of an assignment of Lessee's interests pursuant to a termination or reentry under this Section, the right of any assignee to extend the Lease Term Tenant shall be extinguishedliable to Landlord for the maximum amount recoverable from Tenant under the law pertaining to proceeding resulting in reentry or termination by Landlord.
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Bankruptcy or Insolvency. (ia) If Lessee In the event that Tenant shall become a debtor in a case filed by or against debtor 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 to assume may be made only if the provisions of Sections 5.2(b) and 5.2(d) are satisfied as if the election to assume were made in a case filed under Chapter 11 of the Bankruptcy Code and Lessee Code. If Tenant or LesseeTenant's trustee shall fail to elect to assume this Lease within 60 days after the filing entry of such petition the order for relief in the debtor's case or such additional time as provided by the courtcourt within such 60-day period, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor thereupon Landlord shall be entitled to possession of the Premises without further obligation to Lessee Tenant or LesseeTenant's trustee, trustee and this Lease, Lease upon the election of Lessor, Landlord shall terminate, but LessorLandlord'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 bankruptcy proceeding shall survive, whether or not this Lease shall be terminated.
(iib) An assumption of this Lease In the event that Tenant shall become a debtor in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition case under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to or in a case filed under Chapter 7 of the Bankruptcy CodeCode which is converted to Chapter 11, LesseeTenant's trustee or Tenant, as debtor-in-possession, as the case may be, must elect to assume this Lease within one hundred twenty (120) days from the date of the entry of the order for relief in the debtor's case or Tenant's trustee or Tenant, as debtor-in-possession, as the case may be, shall be deemed to have rejected this Lease. In the event that Tenant's trustee or Tenant as the debtor-in-possession, as the case may be, has failed to perform any 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 obligated permitted or effective unless each of the following conditions has been satisfied:
(1) Tenant's trustee or Tenant as the debtor-in-possession, as the case may be, has cured all Events of Default under this Lease, or has provided Landlord with Assurance (as hereinafter defined) 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.
(2) Tenant's trustee or Tenant as the debtor-in-possession, as the case may be, 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 any Event of Default as indicated in any statement of actual pecuniary loss sent by Landlord to pay reasonable use Tenant's trustee or Tenant as the debtor-in-possession, as the case may be.
(3) Tenant's trustee or Tenant as the debtor-in-possession, as the case may be, has provided Landlord with Assurance of future performance of each of the obligations under this Lease, and occupancy charges shall also (i) deposit with Landlord, as security for the use timely payment of rent under this Lease, an amount equal to one (1) advance installment (in addition to the Premisesinstallment then due as a result of Basic Rent being payable in advance pursuant to subitem (ii) below) of Basic Rent (at the rate then payable) which shall be applied to installments of Basic 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, (ii) agree that from and after such charges date all Basic Rent shall not be less due and payable in advance (rather than in arrears) on each Payment Date, and (iii) pay in advance to Landlord on the date each installment of Basic Rent, Rent is payable a pro rata share of Tenant's annual obligations for Additional Rent and other sums payable by Lessee under 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 Tenant as the debtor-in-possession, as the case may be, by this Section shall continue with respect to Tenant or any assignee of this Lease after the conclusion of the debtor's bankruptcy case.
(iv4) Neither the whole nor any portion The assumption of Lessee's interest in this Lease will not breach or its estate in the Premises shall pass to cause a default under any trustee, receiver, assignee for the benefit provision of creditors or any other person or entitylease, by operation of law or otherwise under the laws of any state having jurisdiction of the person or property of Lesseemortgage, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person financing arrangement or other entity shall be deemed to constitute such consent agreement by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consentwhich Landlord is bound.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
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Bankruptcy or Insolvency. (i) Section 1. If Lessee shall become a debtor in a case filed Debtor under Chapter 7 or Chapter 11 of the United States Bankruptcy Code (the “Code”), and the Trustee or Lessee shall elect to assume this Lease under authority then given by the Code, whether for the purpose of assigning the same or Lessee's trustee otherwise, such election and assignment may only be made if all the terms and conditions of Article XX (b) hereof are fully satisfied. If the Trustee or the Debtor shall fail to elect to assume this Lease within 60 sixty (60) days after the filing of any such petition or such additional time as provided by the courtpetition, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor thereupon shall be immediately entitled to possession of the Demised Premises without further obligation to Lessee or Lessee's trusteethe Trustee, and this Lease, upon the election of Lessor, Lease shall terminatebe terminated, but Lessor's ’s right to be compensated for damages (includingboth at law and as provided in Article XIX hereof shall survive. “Elect to assume,” for the purposes of this paragraph, without limitation, liquidated damages shall be deemed to mean that the Trustee or the Debtor shall have filed a motion to assume this Lease in the Debtor’s bankruptcy proceedings and the Bankruptcy Court in such proceedings shall have allowed such motion.
Section 2. If the Trustee or Debtor-In-Possession has assumed this Lease pursuant to any provision hereofthe provisions of Article XX (a) hereof for the purposes of assigning (or electing to assign) pursuant to the Code, Xxxxxx’s interest under this Lease or the exercise of estate created thereby, to any other remedies person, such interest or estate may be so assigned only if Lessor shall acknowledge in any such proceeding shall survivewriting that the intended assignee has provided adequate assurance for the future performance (as defined in this subparagraph (b)) of all of the terms, whether or not covenants and conditions of this Lease to be performed by Xxxxxx. For the purpose of this subparagraph (b), Lessor and Xxxxxx acknowledge that, in the context of a bankruptcy proceeding of Lessee, at a minimum, “adequate assurance of future performance” shall mean that each of the following conditions shall have been satisfied, and Xxxxxx has so acknowledged in writing:
(i) The assignee has submitted a current financial statement audited by a Certified Public Accountant which shows a net worth and working capital in amounts (which amounts shall in no event be terminated.less than the total of those of Lessee and any guarantor of Xxxxxx’s obligations hereunder at the time of execution of this Lease) determined to be sufficient by Xxxxxx to assure the future performance by such assignee of Lessee’s obligations under this Lease;
(ii) An assumption The assignee, if requested by Xxxxxx, shall have obtained guarantees in form and substance satisfactory to Lessor from one or more persons who satisfy Lessor’s standards of credit;
(iii) The assignee has submitted in writing evidence, satisfactory to Lessor, of substantial business experience in the sale of merchandise and/or services permitted under this Lease;
(iv) Lessor has obtained all consents and waivers from any third party required under any lease, mortgage, financing arrangement or other agreement by which Lessor is bound to permit Lessor to consent to such assignment; and
(v) The assignee has supplied such additional information required to be supplied by this subparagraph (b) and has complied with any other provisions, conditions and requirements set forth in subparagraph (a) for an assignment of Xxxxxx’s interest in this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Codeestate created thereby.
(iiia) When, pursuant to the Bankruptcy Code, Lessee's trustee the Trustee, or the debtorDebtor-inIn-possession Possession shall be obligated to pay reasonable use and occupancy charges for the use of the PremisesDemised Premises or any portion thereof, such charges shall not be less than the Basic Rentrent specified hereunder, Additional Rent without limitation, and other sums payable by Lessee under this Leasewithout deduction or set-off of any kind. CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY “[***]”, HAS BEEN OMITTED BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.
(ivb) Neither the whole nor any portion of Lessee's ’s interest in this Lease or its Lease, nor any lesser interest of Lessee herein, nor any estate in the Premises of Lessee created hereby, shall pass to any trustee, receiver, assignee for the benefit of creditors creditors, or any other person or entity, or otherwise by operation of law or otherwise under the laws of any state having jurisdiction of the person or property of Lessee, Lessee unless Lessor shall have consented consent to such transfertransfer in writing. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor have waived, nor shall it be deemed a waiver of waive the need to obtain, Lessor's ’s consent or Lessor’s right to terminate this Lease for any transfer of Lessee's Xxxxxx’s interest under this Lease without such consent.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
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Bankruptcy or Insolvency. (ia) If Lessee shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee or Lessee's ’s trustee shall fail to elect to assume this Lease within 60 sixty (60) days after the filing of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's ’s trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(ivb) Neither the whole nor any portion of Lessee's ’s interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, conservator, 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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's ’s right to terminate this Lease for any transfer of Lessee's ’s interest under this Lease without such consent.
(vc) In the event of an assignment of Lessee's ’s interests pursuant to this SectionSection 7.02, the right of any assignee to extend the Lease Term for an Extended Term beyond the Primary Term or the then Extended Term of this Lease shall be extinguished.
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Bankruptcy or Insolvency. In no event shall this Lease be assigned or assignable by operation of law and in no event shall this Lease be an asset of Tenant in any receivership, bankruptcy, insolvency or reorganization proceeding. In the event:
(ia) If Lessee shall become A court makes or enters any decree or order adjudging Tenant to be insolvent, or approving as properly filed by or against Tenant a debtor in a case filed petition seeking reorganization or other arrangement of Tenant under Chapter 7 or Chapter 11 any provisions of the Bankruptcy Code or any applicable state law, or directing the winding up or liquidation of Tenant and Lessee such decree or Lessee's trustee order shall fail to elect to assume this Lease within 60 days after the filing have continued for a period of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor's right to be compensated for damages thirty (including, without limitation, liquidated damages pursuant to any provision hereof30) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.days;
(iib) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise Tenant makes or suffers any and all remedies available to it if, at transfer which constitutes a fraudulent or otherwise avoidable transfer under any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 provisions of the Bankruptcy Code.Code or any applicable state law;
(iiic) When, pursuant to the Bankruptcy Code, Lessee's trustee or the debtor-in-possession shall be obligated to pay reasonable use and occupancy charges Tenant generally assigns its assets for the use benefit of its creditors; or
(d) The material part of the Premises, such charges shall not be less than the Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor property of Tenant or any portion property essential to Tenant's business or of LesseeTenant's interest in this Lease is sequestered, attached or its estate executed upon, and Tenant fails to secure a return or release of such property within thirty (30) days thereafter, or prior to sale pursuant to such sequestration, attachment or levy, whichever is earlier. Then this Lease shall, at Landlord's election, immediately terminate and be of no further force or effect whatsoever, without the necessity for any further action by Landlord, except that Tenant shall not be relieved of obligations which have accrued prior to the date of such termination. Upon such termination, the provisions herein relating to the expiration or earlier termination of this Lease shall control and Tenant shall immediately surrender the Premises in the Premises condition required by the provisions of this Lease. Additionally, Landlord shall pass be entitled to any trusteeall relief, receiverincluding recovery of damages from Tenant, assignee for which may from time to time be permitted, or recoverable, under the benefit of creditors Bankruptcy Code or any other person or entity, by operation of law or otherwise under the laws of any applicable state having jurisdiction of the person or property of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consentlaws.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
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Bankruptcy or Insolvency. In no event shall this Lease be assigned or assignable by operation of law and in no event shall this Lease be an asset of Tenant in any receivership, bankruptcy, insolvency or reorganization proceeding. In the event:
(ia) If Lessee shall become A court makes or enters any decree or order adjudging Tenant to be insolvent, or approving as properly filed by or against Tenant a debtor in a case filed petition seeking reorganization or other arrangement of Tenant under Chapter 7 or Chapter 11 any provisions of the Bankruptcy Code or any applicable state law, or directing the winding up or liquidation of Tenant and Lessee such decree or Lessee's trustee order shall fail to elect to assume this Lease within 60 days after the filing have continued for a period of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor's right to be compensated for damages thirty (including, without limitation, liquidated damages pursuant to any provision hereof30) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.days;
(iib) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise Tenant makes or suffers any and all remedies available to it if, at transfer which constitutes a fraudulent or otherwise avoidable transfer under any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 provisions of the Bankruptcy Code.Code or any applicable state law;
(iiic) When, pursuant to the Bankruptcy Code, Lessee's trustee or the debtor-in-possession shall be obligated to pay reasonable use and occupancy charges Tenant assigns its assets for the use benefit of its creditors; or
(d) The material part of the Premises, such charges shall not be less than the Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor property of Tenant or any portion property essential to Tenant's business or of LesseeTenant's interest in this Lease is sequestered, attached or its estate executed upon, and Tenant fails to secure a return or release of such property within ten (10) days thereafter, or prior to sale pursuant to such sequestration, attachment or levy, whichever is earlier; then this Lease shall, at Landlord's election, immediately terminate and be of no further force or effect whatsoever, without the necessity for any further action by Landlord, except that Tenant shall not be relieved of obligations which have accrued prior to the date of such termination. Upon such termination, the provisions herein relating to the expiration or earlier termination of this Lease shall control and Tenant shall immediately surrender the Premises in the Premises condition required by the provisions of this Lease. Additionally, Landlord shall pass be entitled to any trusteeall relief, receiverincluding recover of damages from Tenant, assignee for which may from time to time be permitted, or recoverable, under the benefit of creditors Bankruptcy Code or any other person or entity, by operation of law or otherwise under the laws of any applicable state having jurisdiction of the person or property of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consentlaws.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
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Bankruptcy or Insolvency. (i) If Lessee shall become at any time during the Term of this Lease or any extensions or renewals thereof, a debtor in a case filed petition of relief, reorganization, arrangement or liquidation under Chapter 7 or Chapter 11 any of the laws of the United States Bankruptcy Code be filed by Tenant or any guarantor of this Lease, or if any such petition(s) shall be filed against Tenant or any guarantor and Lessee not be dismissed within sixty (60) days from the date if such filing, or Lessee's if Tenant or any guarantor has filed a petition to be adjudicated a bankrupt, or if the assets of Tenant or the business conducted by Tenant on the Premises be taken over or sequestered by a trustee or receiver or any other person pursuant to any judicial proceedings, or if Tenant makes an assignment for the benefit of creditors, then the occurrence of any such act shall fail be deemed, at the option of Landlord, to elect to assume constitute a breach of this Lease within 60 by Tenant. Tenant agrees that should this Lease ever become part of a debtor’s estate under 11 U.S.C.A. §§ 1 et seq. (the “U.S. Bankruptcy Code”), Tenant shall use its best efforts to cause the prompt assumption or rejection of this Lease in compliance with subsection 365(b)(1) of said Code, including but not limited to the curing of any defaults and/or the provision of adequate assurance. Landlord, at its election, may terminate this Lease in the event of the occurrence of any of the events enumerated herein, by giving not less than five (5) days after written notice to Tenant or to the filing of such petition assignee or trustee or such additional time as provided by other person appointed pursuant to the order of a court, and thereupon Landlord may re-enter the Premises and this Lease shall not be deemed to have been rejectedtreated as an asset of Tenant’s estate. Immediately thereuponHowever, Lessor notwithstanding Landlord’s re-entry, Landlord shall be entitled to possession exercise all available rights and remedies and to recover from Tenant all monies which may be due or become due, including Minimum Rent and Additional Rent and any other damages resulting from the breach of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.
(ii) An assumption terms of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Codeby Tenant.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor any portion of Lessee'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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consent.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Samples: Triple Net Lease (Greenway Medical Technologies Inc)
Bankruptcy or Insolvency. In no event shall this Sublease be assigned or assignable by operation of law and in no event shall this Sublease be an asset of Sublessee in any receivership, bankruptcy, insolvency or reorganization proceeding. In the event:
(ia) If Lessee shall become A court makes or enters any decree or order adjudging Sublessee to be insolvent, or approving as properly filed by or against Sublessee a debtor in a case filed petition seeking reorganization or other arrangement of Sublessee under Chapter 7 or Chapter 11 any provisions of the Bankruptcy Code or any applicable state law, or directing the winding up or liquidation of Sublessee and Lessee such decree or Lesseeorder shall have continued for a period of ninety (90);
(b) Sublessee makes or suffers any transfer which constitutes a fraudulent or otherwise avoidable transfer under any provisions of the Bankruptcy Code or any applicable state law;
(c) Sublessee assigns its assets for the benefit of its creditors; or
(d) The material part of the property of Sublessee or any property essential to the continuing conduct of Sublessee's trustee shall fail business or of Sublessee's interest in this Sublease is sequestered, attached or executed upon, and Sublessee fails to elect to assume this Lease within 60 days after the filing secure a return or release of such petition property within ninety (90) days thereafter, or prior to sale pursuant to such additional time as provided sequestration, attachment or levy, whichever is earlier; then, this Sublease shall, at Sublessor's election, immediately terminate and be of no further force or effect whatsoever, without the necessity for any further action by Sublessor, except that Sublessee shall not be relieved of obligations which have accrued prior to the date of such termination. Upon such termination, the provisions herein relating to the expiration or earlier termination of this Sublease shall control, and Sublessee shall immediately surrender the Premises in the condition required by the courtprovisions of this Sublease. Additionally, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor Sublessor shall be entitled to possession all relief, including recovery of the Premises without further obligation damages from Sublessee, which may from time to Lessee time be permitted, or Lessee's trusteerecoverable, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor any portion of Lessee's interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, assignee for the benefit of creditors Code or any other person or entity, by operation of law or otherwise under the laws of any applicable state having jurisdiction of the person or property of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consentlaws.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Samples: Sublease (Inflow Inc)
Bankruptcy or Insolvency. (i) If Lessee 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 28(c)(ii) and 28(c)(iv) are satisfied as if the election to assume were made in a case filed under Chapter 11 of the Bankruptcy Code and Lessee Code. If Tenant or LesseeTenant's trustee shall fail to elect to assume this Lease within 60 sixty (60) days after the filing of such petition or such additional time as provided by the courtcourt within such sixty (60) day period, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor thereupon Landlord shall be entitled to possession of the Premises without further obligation to Lessee Tenant or LesseeTenant's trustee, trustee and this Lease, Lease upon the election of Lessor, Landlord shall terminate, but LessorLandlord'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.
(iiA) An assumption of this Lease In the event that Tenant shall become a debtor in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has a case filed against it a subsequent petition under Chapter 7 or 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 one hundred twenty (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 of Chapter 11, shall be permitted or effective unless each of the following conditions has been satisfied:
(1) Tenant's trustee or the debtor-in-possession has cured all defaults under this Lease, or has provided Landlord with Assurance (as defined below) that it will cure all defaults 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 defaults under this Lease which are susceptible of being cured by the performance of any act promptly after the date of such assumption.
(iii2) WhenTenant's trustee or the debtor-in-possession has compensated Landlord, pursuant 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 Bankruptcy Codedebtor-in-possession.
(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, LesseeTenant'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 be obligated to pay reasonable use and occupancy charges also (i) deposit with Landlord, as security for the use timely payment of rent hereunder, an amount equal to three (3) installments of Minimum Rent (at the Premisesrate then payable) which shall be applied to installments of Minimum 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, such charges shall not be less than and (ii) pay in advance to Landlord on the Basic Rent, Additional date each installment of Minimum Rent is payable a pro rata share of Tenant's annual obligations for additional rent and other sums 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 paragraph shall continue with respect to Tenant or any assignee of this Lease after the completion of bankruptcy proceedings.
(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.
(B) For purposes of this Section 28(c), 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 (x) there shall have been deposited with Landlord, or the Bankruptcy Court shall have entered an order segregating, sufficient cash payable by Lessee to Landlord, and/or (y) 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 defaults under this Lease, monetary and/or non-monetary, within the time periods set forth above.
(iv) Neither the whole nor any portion of Lessee'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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consent.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Bankruptcy or Insolvency. In no event shall this Lease be assigned or assignable by operation of law and in no event shall this Lease be an asset of Tenant in any receivership, bankruptcy, insolvency or reorganization proceeding. If:
(ia) If Lessee shall become A court makes or enters any decree or order adjudging Tenant to be insolvent, or approving as properly filed by or against Tenant a debtor in a case filed petition seeking reorganization or other arrangement of Tenant under Chapter 7 or Chapter 11 any provisions of the Bankruptcy Code or any other Applicable Law (including any state law), or directing the winding up or liquidation of Tenant and Lessee such decree or Lessee's trustee order shall fail have continued for a period of thirty (30) days;
(b) Tenant makes or suffers any transfer which constitutes a fraudulent or otherwise avoidable transfer under any provisions of the Bankruptcy Code or any other Applicable Law (including state law);
(c) Tenant assigns its assets for the benefit of its creditors; or
(d) The material part of the property of Tenant or any property essential to elect to assume Tenant’s business or of Tenant’s interest in this Lease within 60 days after the filing is sequestered, attached or executed upon, and Tenant fails to secure a return or release of such petition property within ten (10) days thereafter, or prior to sale pursuant to such additional time as provided sequestration, attachment or levy, whichever is earlier; then this Lease shall, at Landlord’s election, immediately terminate and be of no further force or effect whatsoever, without the necessity for any further action by Landlord, except that Tenant shall not be relieved of obligations which have accrued prior to the courtdate of such termination. Upon such termination, the provisions herein relating to the expiration or earlier termination of this Lease shall be deemed to have been rejectedcontrol and Tenant shall immediately surrender the Premises in the condition required by the provisions of this Lease. Immediately thereuponAdditionally, Lessor Landlord shall be entitled to possession all relief, including recovery of the Premises without further obligation damages from Tenant, which may from time to Lessee time be permitted, or Lessee's trusteerecoverable, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor any portion of Lessee's interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, assignee for the benefit of creditors Code or any other person or entity, by operation of law or otherwise under the laws of any Applicable Law (including applicable state having jurisdiction of the person or property of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consentlaws).
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Bankruptcy or Insolvency. (i) If Lessee shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee or Lessee's guarantor, if any, shall not cause or give cause for the appointment of a trustee or a receiver of the assets of Lessee or Lessee's guarantor, if any, and shall fail not make any assignment for the benefit of creditors, or be adjudicated insolvent. The allowance of any petition under any insolvency law except under the Bankruptcy Code or the appointment of a trustee or receiver of Lessee or Lessee's guarantor, if any, or of the assets of either of them, shall be conclusive evidence of the petition, unless the appointment of a trustee or receiver is vacated within thirty days after such an allowance or appointment. Lessor does, in addition, reserve any and all other remedies provided in this Lease or in the law.
A. Upon the filing of a petition by or against Lessee under the Bankruptcy Code, Lessee, as debtor and as debtor in possession, and any trustee who may be appointed, agree as follows:
(i) to elect perform each and every obligation of Lessee under this Lease, including, but not limited to, the manner of "operations" as provided in Article VII of this Lease until such time as this Lease is either rejected or assumed by order of the United States Bankruptcy Court; (ii) to pay monthly in advance on the first day of each month as reasonable compensation for use and occupancy of the Premises an amount equal to all Annual Minimum Rent and other charges otherwise due pursuant to this Lease and to pay Percentage Rent monthly at the percentage set forth in this Lease on all sales during such month less Annual Minimum Rent actually paid in such month; payment of all such Percentage Rent to be made by the 10th of the succeeding month; (iii) to reject or assume this Lease within 60 sixty (60) days after of the filing of such petition under Chapter 7 of the Bankruptcy Code or within one hundred twenty (120) days (or such additional time shorter term as provided by Lessor, in its sole discretion, may deem reasonable so long as notice of such period is given) of the court, filing of a petition under any other Chapter; (iv) to give Lessor at least forty-five (45) days prior written notice of any proceeding relating to any assumption of this Lease; (v) to give at least thirty (30) days prior written notice of any abandonment of the Premises; any such abandonment to be deemed a rejection of this Lease; (vi) to do all other things of benefit to Lessor otherwise required under the Bankruptcy Code; (vii) to be deemed to have rejected this Lease in the event of the failure to comply with any of the above; and (viii) to have consented to the entry of an order by an appropriate United States Bankruptcy Court providing all of the above, waiving notice and hearing of the entry of same.
B. No default of this Lease by Lessee, either prior to or subsequent to the filing of such a petition, shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of waived unless expressly done so in writing by Lessor, shall terminate, but Lessor'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.
(iiC. It is understood and agreed that this is a lease of real property in a shopping center as such a lease is described in Section 365(b)(3) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
D. Included within and in addition to any other conditions or obligations imposed upon Lessee or its successor in the event of assumption and/or assignment are the following: (i) the cure of any monetary defaults and the reimbursement of pecuniary loss within not more than thirty (30) days of assumption and/or assignment; (ii) the deposit of an additional sum equal to three (3) months' rent to be held as security or such lesser additional security as a United States Bankruptcy Court may deem appropriate; (iii) When, pursuant to the Bankruptcy Code, Lessee's trustee or the debtor-in-possession shall be obligated to pay reasonable use and occupancy charges for the use of the Premises as set forth in Article VII of this Lease with the quality, quantity and/or lines of merchandise of any goods or services required to be offered for sale unchanged; (iv) the reorganized debtor or assignee of such debtor in possession or Lessee's trustee demonstrates in writing that it has retailing experience in shopping centers of comparable size and financial ability to operate a retail establishment out of the Premises in the manner contemplated in this Lease and meets all other reasonable criteria of Lessor as did Lessee upon execution of this Lease; (v) the prior written consent of any mortgagee to which this Lease has been assigned as collateral security; and (vi) the Premises, such charges shall not at all times, remains a single store and no physical changes of any kind may be less than made to the Basic Rent, Additional Rent and other sums payable by Lessee under Premises unless in compliance with the applicable provisions of this Lease.
(iv) Neither the whole nor any portion of Lessee'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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consent.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Bankruptcy or Insolvency. The Landlord and Tenant acknowledge and agree that the provisions of this Section 34 shall control notwithstanding anything to the contrary contained herein.
(ia) If Lessee In the event that Tenant shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code Reform Act of 1978, 11 U.S.C.A. §§701 to 784 (Bankruptcy Code) and Lessee Tenant's trustee or LesseeTenant 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 this Section 34 are satisfied. If Tenant or Tenant's trustee shall fail to elect to assume this Lease within 60 days after the filing entry of such petition or such additional time as provided by the courtan order for relief, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor Landlord shall be entitled to possession of the Leased Premises without further obligation to Lessee Tenant or LesseeTenant's trustee, trustee and this Lease, upon the election of LessorLandlord, shall terminate, but LessorLandlord's right to be compensated for damages (including, without limitation, liquidated damages pursuant to any provision hereof) Section 19 or the exercise of any other remedies in any such proceeding proceeding) shall survive, whether or not this Lease shall be terminated.
(iib) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare In the event that a voluntary petition for reorganization is filed by Tenant, or an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee involuntary petition is liquidated or files or has filed against it a subsequent petition Tenant under Chapter 7 or Chapter 11 of the Bankruptcy Code, or in the event of the entry of an order for relief under Chapter 7 in a case which is then transferred to Chapter 11, Tenant's trustee or Tenant, as debtor-in-possession, must elect to assume this Lease within 60 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. Immediately thereupon, Landlord shall be entitled to possession of the Leased Premises 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 Section 19 or the exercise of any other remedies in any such proceeding) shall survive, whether or not this Lease shall be terminated.
(c) No election by Tenant's trustee or the debtor-in-possession to assume this Lease, whether under Chapter 7 or Chapter 11, shall be effective unless each of the following conditions has been satisfied:
(i) Tenant's trustee or the debtor-in-possession has cured all defaults under this Lease, or has provided Landlord with evidence satisfactory to Landlord that it will cure all defaults susceptible of being cured by the payment of money within 10 days from the date of such assumption, and that it will cure all other defaults under this Lease which are susceptible of being cured by the performance of any act within 30 days after the date of such assumption.
(ii) Tenant's trustee or the debtor-in-possession has compensated, or has provided Landlord with evidence satisfactory to Landlord that, within 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.
(iii) Tenant's trustee or the debtor-in-possession (A) has provided Landlord with Assurance, as hereinbelow defined, of the future performance of each of the obligations under this Lease of Tenant, Tenant's trustee, or the debtor-in-possession, and (B) shall, in addition to any other security deposits held by Landlord, deposit with Landlord, as security for the timely payment of Minimum Rental and for the performance of all other obligations of Tenant under this Lease, an amount equal to 3 monthly installments of Minimum Rental and any percentage rental payable under this Lease (both at the rate then payable), and (C) pay in advance to Landlord on the date each installment of Minimum Rental is due and payable, one-twelfth of Tenant's annual obligations for Impositions and insurance premiums to be made by Tenant pursuant to this Lease. The obligations imposed upon Tenant's trustee or the debtor-in-possession by this Section 34 shall continue with respect to Tenant or any assignee of this Lease, after the conclusion of proceedings under the Bankruptcy Code.
(iv) Such assumption will not breach or cause a default under any provision of any other lease, Mortgage, financing agreement, or other agreement by which Landlord or the Superior Lessor is bound, relating to the Leased Premises or any larger development of which the Leased Premises is a part.
(d) For purposes of subsection (c)(iii) of this Section 34, Landlord and Tenant acknowledge that Assurance shall mean no less than: (i) 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 (ii) to secure to Landlord the obligations of Tenant, Tenant's trustee, or the debtor-in-possession, and to assure the ability of Tenant, Tenant's trustee, or the debtor-in-possession to cure the defaults under this Lease, monetary and/or non-monetary, there shall have been: (A) sufficient cash deposited with Landlord, or (B) the Bankruptcy Court shall have entered an order segregating sufficient cash payable to Landlord, and/or (C) Tenant's trustee or the debtor-in-possession shall have granted to Landlord 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.
(e) In the event that this Lease is assumed in accordance with subsection (b) of this Section 34 and thereafter Tenant is liquidated or files, or has filed against it, a subsequent petition under any provision of the Bankruptcy Code or any similar statute for relief of debtors, 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 30 days after the occurrence of either of such events.
(f) If Tenant's trustee or the debtor-in-possession has assumed this Lease pursuant to the terms and provisions of this Section 34 for the purpose of assigning (or elects to assign) this Lease, this Lease may be so assigned only if the proposed 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 consideration for such assignment, whether cash or otherwise. As used in this subsection (f) of this Section 34 "adequate assurance of future performance" shall mean at least that clauses (B) and (C) of subsection (c)(iii) of this Section 34, and each of the following conditions, has been satisfied:
(i) The proposed assignee has furnished Landlord with a current financial statement audited by a certified public accountant, determined in accordance with generally accepted accounting principles consistently applied, indicating a credit rating, net worth, and working capital in amounts which Landlord reasonably determines to be sufficient to assure the future performance of such assignee of Tenant's obligations under this Lease, but in no event indicating a net worth less than the net worth of the Tenant and any Guarantors of this Lease, on the date of execution hereof.
(ii) Such assignment will not breach or cause a default under any provision of any other lease, Mortgage, financing agreement, or other agreement by which Landlord or the Superior Lessor is bound, relating to the Leased Premises or any larger development of which the Leased Premises is a part.
(iii) The proposed assignment will not release or impair any Guarantee under this Lease.
(g) When, pursuant to the Bankruptcy Code, LesseeTenant's trustee or the debtor-in-possession shall be obligated to pay reasonable use and occupancy charges for the use of the Leased Premises, such charges shall not be less than the Basic Rent, Additional Rent Minimum Rental and other sums all additional rent payable by Lessee Tenant under this Lease, and shall be paid at the times and when due as though such charges were Minimum Rental and additional rent.
(ivh) Neither Anything in this Lease to the contrary notwithstanding, neither the whole nor any portion of LesseeTenant's interest in this Lease or its estate in the Leased Premises shall pass to any trustee, receiver, assignee for the benefit of creditors creditors, or any other similar person or entity, or otherwise by operation of law under the Bankruptcy Code or otherwise any similar federal statute now or hereinafter enacted, or under the laws of any state having jurisdiction of the person or property of LesseeTenant, unless Lessor Landlord shall have consented to such transfertransfer in writing. No acceptance by Lessor Landlord of rent or any other payments from any such trustee, receiver, assignee, person person, or other entity shall be deemed to constitute such consent by Lessor Landlord, nor shall it be deemed a waiver of LessorLandlord's right to terminate this Lease for any transfer of LesseeTenant's interest under this Lease without such consent.
(vi) Anything in this Lease to the contrary notwithstanding, Tenant covenants and agrees that this Lease is an extension of financial benefits and accommodations to Tenant which are uniquely personal in nature, and such financial benefits and accommodations are a material inducement for Landlord's execution and delivery of this Lease, and are an integral part of the consideration for this Lease.
(j) Notwithstanding anything in this Lease to the contrary, and as a material inducement for Landlord's execution and delivery of this Lease, and the extension of financial benefits and accommodations uniquely personal to Tenant, Tenant covenants and agrees for itself, its successors, and assigns, that it will maintain at all times a net worth, determined in accordance with generally accepted accounting principles consistently applied, of not less than the net worth so determined of Tenant and any Guarantors of this Lease on the date of execution hereof. Failure to comply with the provisions of this subsection (j) of Section 34 shall be deemed a default relating to a monetary obligation, as that term is used in Section 19 of this Lease, entitling Landlord to the remedies therein provided.
(k) In the event of an assignment assumption or assignment, or both, of LesseeTenant's interests pursuant to this SectionSection 34, the right of any assignee to extend the term of this Lease for an Extended Term beyond the then term of this Lease shall be extinguished.
Appears in 1 contract
Samples: Lease Agreement (First National Bancshares Inc /Sc/)
Bankruptcy or Insolvency. In no event shall this Lease be assigned or assignable by operation of law and in no event shall this Lease be an asset of Tenant in any receivership, bankruptcy, insolvency or reorganization proceeding. In the event:
(i) If Lessee shall become A court makes or enters any decree or order adjudging Tenant to be insolvent, or approving as properly filed by or against Tenant a debtor in a case filed petition seeking reorganization or other arrangement of Tenant under Chapter 7 or Chapter 11 any provisions of the Bankruptcy Code or any applicable state law, or directing the winding up or liquidation of Tenant and Lessee such decree or Lessee's trustee order shall fail to elect to assume this Lease within 60 days after the filing have continued for a period of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor's right to be compensated for damages thirty (including, without limitation, liquidated damages pursuant to any provision hereof30) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.days:
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise Tenant makes or suffers any and all remedies available to it if, at transfer which constitutes a fraudulent or otherwise avoidable transfer under any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 provisions of the Bankruptcy Code.Code or any applicable state law;
(iii) When, pursuant to the Bankruptcy Code, Lessee's trustee or the debtor-in-possession shall be obligated to pay reasonable use and occupancy charges Tenant assigns its assets for the use benefit of the Premises, such charges shall not be less than the Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.its creditors; or
(iv) Neither The material part of the whole nor property of Tenant or any portion property essential to Tenant's business or of LesseeTenant's interest in this Lease is sequestered, attached or its estate executed upon, and Tenant fails to secure a return or release of such property within ten (10) days thereafter, or prior to sale pursuant to such sequestration, attachment or levy, whichever is earlier; then this Lease shall, at Landlord's election, immediately terminate and be of no further force or effect whatsoever, without the necessity for any further action by Landlord, except that Tenant shall not be relieved of obligations which have accrued prior to the date of such termination. Upon such termination, the provisions herein relating to the expiration or earlier termination of this Lease shall control and Tenant shall immediately surrender the Premises in the Premises condition required by the provisions of this Lease. Additionally, Landlord shall pass be entitled to any trusteeall relief, receiverincluding recovery of damages from Tenant, assignee for which may from time to time be permitted, or recoverable, under the benefit of creditors Bankruptcy Code or any other person or entity, by operation of law or otherwise under the laws of any applicable state having jurisdiction of the person or property of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consentlaws.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Samples: Lease Agreement (Surebeam Corp)
Bankruptcy or Insolvency. (ia) If Lessee shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee or Lessee's ’s trustee shall fail to elect to assume this Lease within 60 days after the filing of such petition or such additional time as provided by the courtcourt within such 60-day period, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's ’s trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(ivb) Neither the whole nor any portion of Lessee's ’s interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, conservator, 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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's ’s right to terminate this Lease for any transfer of Lessee's ’s interest under this Lease without such consent.
(vc) In the event of an assignment of Lessee's ’s interests pursuant to this SectionSection 7.02, the right of any assignee to extend the Lease Term for an Extended Term beyond the Primary Term or the then Extended Term of this Lease shall be extinguished.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pulaski Financial Corp)
Bankruptcy or Insolvency. The Landlord and Tenant acknowledge and agree that the provisions of this Section 33 shall control notwithstanding anything to the contrary contained herein.
(ia) If Lessee In the event that Tenant shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee Tenant's trustee or LesseeTenant 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 this Section 33 are satisfied. If Tenant or Tenant's trustee shall fail to elect to assume this Lease within 60 days after the filing entry of such petition or such additional time as provided by the courtan order for relief, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor thereupon Landlord shall be entitled to possession of the Leased Premises without further obligation to Lessee Tenant or LesseeTenant's trustee, trustee and this Lease, upon the election of LessorLandlord, shall terminate, but LessorLandlord's right to be compensated for damages (including, without limitation, liquidated damages pursuant to any provision hereof) Section 19 or the exercise of any other remedies in any such proceeding proceeding) shall survive, whether or not this Lease shall be terminated.
(iib) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare In the event that a voluntary petition for reorganization is filed by Tenant, or an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee involuntary petition is liquidated or files or has filed against it a subsequent petition Tenant under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant or in the event of the entry of an order for relief under Chapter 7 in a case which is then transferred to Chapter 11, Tenant's trustee or Tenant, as debtor-in-possession must elect to assume this Lease within 60 days from the Bankruptcy Codedate of the filing of the petition under Chapter 11 or the transfer thereto, Lesseeor Tenant's trustee or the debtor-in-possession shall be obligated deemed to pay reasonable use and occupancy charges for the use have rejected this Lease. Immediately thereupon Landlord shall be entitled to possession of the PremisesLeased Premises 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 Section 19 or the exercise of any other remedies in any such charges proceeding) shall survive, whether or not this Lease shall be less than terminated.
(c) No election by Tenant's trustee or the Basic Rentdebtor-in-possession to assume this Lease, Additional Rent and other sums payable by Lessee whether under Chapter 7 or Chapter 11, shall be effective unless each of the following conditions has been satisfied:
(i) Tenant's trustee or the debtor-in-possession has cured all defaults under this Lease, or has provided Landlord with evidence satisfactory to Landlord that it will cure all defaults susceptible of being cured by the payment of money within 10 days from the date of such assumption and that it will cure all other defaults under this Lease which are susceptible of being cured by the performance of any act within 30 days after the date of such assumption.
(ii) Tenant's trustee or the debtor-in-possession has compensated, or has provided Landlord with evidence satisfactory to Landlord that, within 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.
(iii) Tenant's trustee or the debtor-in-possession (A) has provided Landlord with "Assurance", as hereinbelow defined, of the future performance of each of the obligations under this Lease of Tenant, Tenant's trustee or the debtor-in-possession and (B) shall, in addition to any other security deposits held by Landlord, deposit with Landlord, as security for the timely payment of Minimum Rental and for the performance of all other obligations of Tenant under this Lease, an amount equal to 3 monthly installments of Minimum Rental and any percentage rental payable under this Lease (both at the rate then payable) , and (C) pay in advance to Landlord on the date each installment of Minimum Rental is due and payable, one-twelfth of Tenant's annual obligations for Impositions and insurance premiums to be made by Tenant pursuant to this Lease. The obligations imposed upon Tenant's trustee or the debtor-in-possession by this Section 33 shall continue with respect to Tenant or any assignee of this Lease, after the conclusion of proceedings under the Bankruptcy Code.
(iv) Neither Such assumption will not breach or cause a default under any provision of any other lease, Mortgage, financing agreement or other agreement by which Landlord is bound, relating to the whole nor any portion of Lessee's interest in this Lease or its estate in the Leased Premises shall pass to any trustee, receiver, assignee for the benefit of creditors or any other person larger development of which the Leased Premises is a part.
(d) For purposes of subsection (c) (iii)of this Section 33, Landlord and Tenant acknowledge that "Assurance" shall mean no less than: (i) Tenant's trustee or entity, by operation the debtor-in-possession has and will continue to have sufficient unencumbered assets after the payment of law or otherwise under all secured obligations and administrative expenses to assure Landlord that sufficient funds will be available to fulfill the laws obligations of any state having jurisdiction of the person or property of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest Tenant under this Lease without such consentand (ii) to secure to Landlord the obligations of Tenant, Tenants trustee or the debtor-in-possession and to assure the ability of Tenant, Tenant's trustee or the debtor-in-possession to cure the defaults under this Lease, monetary and/or non-monetary, there shall have been: (A) sufficient cash deposited with Landlord, or (B) the Bankruptcy Court shall have entered an order segregating sufficient cash payable to Landlord and/or (C) Tenant's trustee or the debtor-in-possession shall have granted to Landlord 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.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Samples: Lease (Timco Aviation Services Inc)
Bankruptcy or Insolvency. (ia) If Lessee shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee or Lessee's ’s trustee shall fail to elect to assume this Lease within 60 days after the filing of such petition or such additional time as provided by the courtcourt within such 60-day period, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's ’s trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(ivb) Neither the whole nor any portion of Lessee's ’s interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, conservator, 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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's ’s right to terminate this Lease for any transfer of Lessee's ’s interest under this Lease without such consent.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Samples: Lease Agreement (Truck Hero, Inc.)
Bankruptcy or Insolvency. Landlord and Tenant agree that the following shall apply in the event of the bankruptcy or insolvency of Tenant:
(ia) If Lessee shall become a debtor in a case petition is filed by, or an order for relief is entered against Tenant under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee or Lessee's the trustee shall fail of Tenant elects to assume this Lease for the purpose of assigning it, such assumption and assignment may be made only if all of the terms and conditions of Subsections (b) and (d) below are satisfied. To be effective, an election to assume this Lease must be in writing, addressed to Landlord, and Version 10 all of the conditions herein stated, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied. If the trustee fails so to elect to assume this Lease within 60 sixty (60) days after the such filing of such petition or order or such additional time as provided by the courtBankruptcy Court, for cause, may fix, this Lease shall will be deemed to have been rejected. Immediately thereupon, Lessor and Landlord shall then immediately be entitled to possession of the Premises Master Lease Property without further obligation to Lessee Tenant or Lessee's the trustee, and this Lease, upon the election of Lessor, Lease shall terminate, but Lessorbe terminated. Landlord's right to be compensated for damages (includingin the bankruptcy proceeding, without limitationhowever, liquidated damages pursuant to any provision hereof) or the exercise of any other remedies in any shall survive such proceeding shall survive, whether or not this Lease shall be terminatedtermination.
(iib) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated If Tenant files a petition for reorganization under Chapters 11 or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 13 of the Bankruptcy Code.
(iii) When, pursuant to or if a pro ceeding filed by or against Tenant under any other chapter of the Bankruptcy CodeCode is converted to a chapter 11 or 13 proceeding and Tenant's trustee or Tenant as debtor-in-possession fails to assume this Lease within 60 days from the date of the filing of such petition or conversion or such additional time as the Bankruptcy Court, Lessee's for cause, may fix, then the trustee or the debtor-in-possession shall be deemed to have rejected this Lease. To be effective, any election to assume this Lease must be in writing, addressed to Landlord and, if there has been a default under the Lease, all of the following conditions, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied:
(i) The trustee or the debtor-in-possession has cured or has provided to Landlord adequate assurance that:
(A) It will cure all monetary defaults under this Lease within the number of days specified in Section 21(a)(I) of this Lease from the date of assumption; and
(B) It will cure all nonmonetary defaults under this Lease within the number of days specified in Section 21(a)(ii) of this Lease from the date of assumption.
(ii) The trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with adequate assurance that Landlord will be compensated promptly for any pecuniary loss it has incurred arising from the default of Tenant, the trustee, or the debtor-in-possession.
(iii) The trustee or the debtor-in-possession has provided Landlord with adequate assurance of the future performance of each of Tenant's obligations under this Lease; provided, however, that:
(A) From and after the date of assumption of this Lease, until the date of the assignment of this Lease, it shall pay all monetary obligations, including, without limitation, the Rent payable under this Lease, in advance on each date that such amounts are payable.
(B) It shall also deposit with Landlord, as security for the timely payment of Rent, an amount equal to three months' Base Rent and other monetary charges accruing under this Lease;
(C) If not otherwise required by the terms of this Lease, it shall also pay in advance, on each day that any installment of Base Rent is payable, one-twelfth (1/12) of Tenant's Imposition, Insurance and other obligations under this Lease.
(c) If the trustee or the debtor-in-possession has assumed this Lease, pursuant to Subsection (a) or (b) above, and elects to assign Tenant's interest under this Lease or the estate created by that interest to any other person, such interest or estate may be assigned only if the intended assignee has provided adequate assurance of future performance of all of the terms, covenants, and conditions of this Lease. For the purposes of this Subsection (d), "adequate assurance of future performance" means that Landlord has ascertained that each of the following condition has been satisfied: The assignee has submitted a current financial statement which shows a net worth and working capital in amounts sufficient to assure the future performance by the assignee of Tenant's obliga tions under this Lease.
(d) 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 PremisesMaster Lease Property, it is agreed that such charges shall will not be less than the Basic RentBase Rent as defined in this Lease, plus Additional Rent and other sums payable by Lessee under this Leasemonetary obligations of Tenant included herein.
(ive) Neither Except to the whole nor any portion of Lesseeextent provided by law, neither Tenant's interest in this Lease or its nor any estate of Tenant created in the Premises this Lease shall pass to any trustee, receiver, assignee for the benefit of creditors creditors, or any other person or entity, nor otherwise by operation of law or otherwise under the laws of any state having jurisdiction of the person or property of LesseeTenant, unless Lessor shall have consented Landlord consents in writing to such transfer. No Landlord's acceptance by Lessor of rent Rent or any other payments from any such trustee, receiver, Version 10 assignee, person person, or other entity shall will not be deemed to constitute such have waived, or waive, either the requirement of Landlord's consent by Lessor nor shall it be deemed a waiver of Lessoror Landlord's right to terminate this Lease for any transfer of LesseeTenant's interest inter est under this Lease without such consent.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Samples: Master Lease Agreement (Comsat Corp)
Bankruptcy or Insolvency. (i) If Lessee Any resolution shall be passed or any action shall be taken by any Obligor for the termination, winding up, liquidation or dissolution of any Obligor or its debts, or any Obligor shall make an assignment for the benefit of creditors, become insolvent or be unable to pay (or admit in writing its inability to pay) any of its debts as they mature, or any Obligor shall file a debtor petition in voluntary liquidation or bankruptcy, or any Obligor shall file a case filed petition or answer or consent seeking reorganization or the readjustment of any of its debt under Chapter 7 applicable insolvency or Chapter 11 bankruptcy laws now or hereafter existing, or any Obligor shall consent to the appointment of any receiver, administrator, liquidator, custodian or trustee of all or any part of its property or assets, or legal action shall be taken by any Obligor for the purpose of effecting any of the Bankruptcy Code and Lessee or Lessee's trustee shall fail to elect to assume this Lease within 60 days after the filing of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.foregoing; or
(ii) An assumption By order or decree of this Lease any court of competent jurisdiction, any Obligor shall be adjudicated a bankrupt or insolvent, or a petition for proceedings in accordance with Section 7.02(f)(i) bankruptcy or liquidation or for the reorganization or the readjustment of its debt under applicable bankruptcy or insolvency laws now or hereafter existing shall be filed against any Obligor, and any Obligor shall admit the material allegations thereof, or shall not limit Lessor's right cause such petition to declare an Event of Default hereunder and exercise be discharged within thirty (30) days, or any and all remedies available to it if, at any time after such assumption, Lessee is liquidated order judgment or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee's trustee or the debtor-in-possession decree shall be obligated to pay reasonable use made approving such petition and occupancy charges for the use of the Premisessuch order, such charges judgment or decree shall not be less than the Basic Rentvacated, Additional Rent and other sums payable by Lessee under this Lease.
set aside or stayed within thirty (iv30) Neither the whole nor days of their issuance or any portion of Lessee's interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, assignee administrator, liquidator or trustee shall be appointed for the benefit of creditors any Obligor or for all or any other person or entity, by operation part of law or otherwise under the laws of any state having jurisdiction of the person or its property of Lessee, unless Lessor shall have consented to and such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assigneeadministrator, person liquidator or other entity trustee shall not be deemed to constitute such consent by Lessor nor discharged or his jurisdiction shall it not be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consent.
relinquished, vacated or stayed, on appeal or otherwise, within thirty (v30) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.days after his appointment; or
Appears in 1 contract
Bankruptcy or Insolvency. (i) If Lessee 12.1 In the event that the Tenant or any general partner of the Tenant shall become a debtor in a case filed Debtor under Chapter 7 or Chapter 11 of the Bankruptcy Code Code, and Lessee the Trustee or Lessee's trustee the Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may only be made if all other terms and conditions of Article XII, subsection 2 and 4 hereof are satisfied. If such Trustee shall fail to elect to assume this Lease within 60 sixty (60) days after the filing of such petition or such additional time as provided by the courtPetition, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor The Landlord shall be thereupon immediately entitled to possession of the Premises without further obligation to Lessee the Tenant or Lessee's trusteethe Trustee, and this Lease, upon the election of Lessor, Lease shall terminatebe terminated, but Lessor's the Landlord’s right to be compensated for damages both at law and as provided in Article XI hereof in such case shall survive.
12.2 No election by the Trustee or Debtor-In-Possession to assume this Lease, whether under Chapter 7, 11 or 13, shall be effective unless each of the following conditions, which the Landlord and the Tenant acknowledge and agree are commercially reasonable in the context of a bankruptcy case of the Tenant, have been satisfied, and the Landlord has so acknowledged in writing:
a) The Trustee of the Debtor-In-Possession has cured, or has provided the Landlord adequate assurance (includingas hereinafter defined) that:
1. Within ten (10) days from the date of such assumption, without limitationthe Trustee will cure all monetary defaults under this Lease; and
2. Within thirty (30) days from the date of such assumption, liquidated damages pursuant the Trustee will cure all non-monetary defaults under this Lease.
b) The Trustee or Debtor-In-Possession has compensated, or has provided to the Landlord adequate assurance (as hereinafter defined) that within ten (10) days from the date of assumption, the Landlord will be compensated for any provision hereof) pecuniary loss incurred by the Landlord arising from the default of the Tenant, the Trustee, or the exercise Debtor-In-Possession as recited in the Landlord’s written statement of any other remedies pecuniary loss sent to the trustee or Debtor-In-Possession.
c) The trustee or the Debtor in any such proceeding shall survivePossession has provided the Landlord with adequate assurance (as hereinafter defined) of the future performance of each of the Tenant’s, whether the Trustee’s or not Debtor in Possession’s obligation under this Lease, provided, however, that the obligations imposed upon the Trustee or Debtor in Possession under this Lease shall be terminatedcontinue with respect to the Tenant or any assignee of this Lease after the completion of the bankruptcy case, subject to any further and/or increased obligations which thereafter are imposed by any provisions of this Lease.
(iid) An The assumption of this Lease will not:
1. Breach any provision in accordance with Section 7.02(f)(ithis Lease or any other Lease, mortgage, financing agreement or other agreement by which the Landlord is bound relating to the Building; or
2. Disrupt, in the Landlord’s judgment, the tenant mix of the Building or any other attempt by the Landlord to provide a specific variety of Tenants’ uses in the Building which, in the Landlord’s judgment, would be most beneficial and would enhance the image, reputation, and profitability of the Building.
e) shall not limit Lessor's right to declare an Event The assumption has been ratified and approved by order of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated court or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of courts as have final jurisdiction over the Bankruptcy Code.
1. The trustee or Debtor-In-Possession has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure the Landlord that the trustee or Debtor-In-Possession will have sufficient funds to fulfill the obligations of the tenant under this Lease, and to keep the Premises operating with sufficient employees to conduct a fully-operational, actively promoted business on the Premises; and
2. The Bankruptcy Court or such court as is exercising jurisdiction over the Bankruptcy Code shall have entered an order segregating sufficient cash payable to the Landlord and/or the Trustee or Debtor-In Possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of the Tenant, the Trustee or Debtor-In-Possessions, acceptable as to value and kind to the Landlord, to secure to the Landlord the obligation of the Trustee or Debtor-In-Possession to cure any monetary and/or non monetary defaults under this Lease within the time periods set forth above.
12.3 In the event that this Lease is assumed by a Trustee appointed for the Tenant or by the Tenant as Debtor-In-Possession and thereafter the Tenant is liquidated or files a subsequent Petition for reorganization or adjustment of debts under Chapter 11 or 13 of the Bankruptcy code, then, and in either such event, the Landlord may, at its option, terminate this Lease and all rights of the Tenant hereunder, by giving the Tenant written notice of its election so to terminate, within thirty (iii30) days after the Landlord shall have received written notice of the occurrence of either such event, but the Landlord’s right to be compensated for damages both at law and as provided in Article XI hereof shall survive.
12.4 If the Trustee or Debtor-In-Possession has assumed this Lease pursuant to the terms and provisions of Articles 12.1 and 12.2 hereof, for the purpose of assigning (or elects to assign) the Tenant’s interest under this Lease, or the estate created thereby, to any other person, such interest or estate may be so assigned only if the Landlord shall acknowledge in writing that the intended assignee has provided adequate assurance of the future performance (as defined in this Article 12.4 of all of the terms, covenants and conditions of this Lease to be performed by the Tenant). For the purposes of the Article 12.4, the Landlord and the Tenant acknowledge that, in the context of a bankruptcy proceeding of the Tenant, at a minimum, “adequate assurance of future performance” shall mean that each of the following conditions have been satisfied, and the Landlord has so acknowledged in writing:
a) The assignee has submitted a current financial statement audited by a Certified Public Accountant which shows a net worth and working capital in amounts (which amounts shall in no event be less than the greater of those of the Tenant and any guarantor of the Tenant’s obligations hereunder at the time of the execution of this Lease) determined to be sufficient by the Landlord to assure the future performance by such assignee of then Tenant’s obligations under this Lease;
b) The assignee, if requested by the Landlord, shall have obtained guarantees in form and substance satisfactory to the Landlord from one or more persons who satisfy the Landlord’s standards of creditworthiness;
c) The assignee has submitted in writing evidence, satisfactory to the Landlord, of substantial experience in the conducting of the type of business permitted under this Lease;
d) The Landlord has obtained consents and waivers from any third party required under any Lease, mortgage, financing arrangement or other agreement by which the Landlord is bound to permit the Landlord to consent to such assignment;
e) The assignee has supplied such additional information required to be supplied by Article VI hereof and has complied with any other provision, conditions and requirements set forth in said Article VI for an assignment of the Tenant’s interest in this Lease or the estate created thereby; and
f) The assignee has deposited with the Landlord a security deposit in such amount as determined by the Landlord to be appropriate based upon the financial information supplied under this Article 12.4.
12.5 When, pursuant to the Bankruptcy Code, Lessee's trustee the Trustee or the debtorDebtor-inIn-possession Possession shall be obligated to pay reasonable use and occupancy charges for the use of the PremisesPremises or any portion thereof, such charges shall not be less than the Basic Rent, Additional Rent average monthly amount paid on the account of rent for the preceding calendar month and any other sums charges payable by Lessee under this Leasethe Tenant hereunder.
(iv) 12.6 Neither the whole nor any portion of Lessee's Tenant’s interest in this Lease or its Lease, nor any lesser interest of the Tenant herein, nor any estate in of the Premises Tenant created hereby, shall pass to any trustee, receiver, assignee for the benefit of creditors creditors, or any other person or entity, or otherwise by operation of law or otherwise under the laws of any state having jurisdiction of the person or property of Lessee, the Tenant unless Lessor the Landlord shall have consented consent to such transfertransfer in writing. No acceptance by Lessor the 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 Lessor have waived, nor shall it be deemed a waiver of Lessor's waive the need to obtain the Landlord’s consent or the Landlord’s right to terminate this Lease for any transfer of Lessee's the Tenant’s interest under this Lease without such consent.
(v) In 12.7 The rights and remedies of the event Landlord contained in the provisions of an assignment this Article XII are and shall be deemed to be in addition to, and not in limitation of, applicable provisions of Lessee's interests Article XI and other provisions hereof, any other rights which the Landlord may have under applicable statutory or case law. Whenever any of the terms or provisions of this Lease, including, without limitation, rental obligations, are modified pursuant to this Section, the right provisions of any assignee to extend the Lease Term shall be extinguished.this
Appears in 1 contract
Bankruptcy or Insolvency. (ia) If Lessee Conditions to the Assumption and Assignment of the Lease Under Chapter 7 of the Bankruptcy Code. In the event that Tenant shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code Code, and Lessee the Trustee or Lessee's trustee Tenant shall fail to elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may only be made if all of the terms and conditions of Section B and Section C hereof are satisfied. If such Trustee shall fail to elect or assume this Lease within 60 sixty (60) days after the filing of such petition or such additional time as provided by the courtPetition, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor Landlord shall be thereupon immediately entitled to possession of the Leased Premises without further obligation to Lessee Tenant or Lessee's trusteeTrustee, and this Lease, upon the election of Lessor, Lease shall terminatebe canceled, but LessorLandlord'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.
(iib) An assumption Conditions to the Assumption of this the Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event Bankruptcy Proceedings. In the event that a Petition for reorganization or adjustment of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee debts is liquidated or files or has filed against it a subsequent petition concerning Tenant under Chapter 7 or Chapter 11 of the Bankruptcy Code, or a proceeding is filed under Chapter 7 of the Bankruptcy Code and is transferred to Chapter 11, the Trustee or Tenant, as Debtor-in-Possession, must elect to assume this Lease within seventy-five (75) days from the date of the filing of the Petition under Chapter 11, or the Trustee or Debtor-in-Possession shall be deemed to have rejected this Lease. No election by the Trustee or Debtor-in-Possession to assume this Lease, whether under Chapter 7 or 11, shall be effective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable in the context of a bankruptcy proceeding of Tenant, have been satisfied, and Landlord has so acknowledged in writing:
1) The Trustee or the Debtor-in-Possession has cured, or has provided Landlord adequate assurance (as defined below) that:
(i) Within ten (10) days of such assumption the Trustee will cure all monetary defaults under this Lease; and
(ii) Within thirty (30) days from the date of such assumption the Trustee will cure all non-monetary defaults under this Lease.
2) The Trustee or the Debtor-in-Possession has compensated, or has provided to Landlord adequate assurance (as defined below) that within ten (10) days from the date of assumption Landlord will be compensated for any pecuniary loss incurred by Landlord arising from the default of Tenant, the Trustee or the Debtor-in-Possession as recited in Landlord's written statement of pecuniary loss sent to the Trustee or Debtor-in-Possession.
3) The Trustee or the Debtor-in-Possession has provided Landlord with adequate assurance of the future performance of each of Tenant's, Trustee's, or Debtor-in-Possession's obligations under this Lease; provided, however, that:
(i) The Trustee or Debtor-in-Possession shall also deposit with Landlord as security for the timely payment of rent an amount equal to three (3) months' Rent (as adjusted pursuant to this section) and other monetary charges accruing under this Lease; and
(ii) If not otherwise required by the terms of this Lease, the Trustee or Debtor-in-Possession shall also pay in advance on the date monthly Rent is payable 1/12th of Tenant's annual obligations under this Lease for Additional Rent.
(iii) WhenThe obligations imposed upon the Trustee or Debtor-in-Possession shall continue with respect to Tenant or any assignee of the Lease after the completion of bankruptcy proceedings.
4) The assumption of the Lease will not breach any provision in any other lease, mortgage, financing agreement or other agreement by which Landlord is bound relating to the Leased Premises.
5) For purposes of this section, Landlord and Tenant acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance" shall mean:
(i) The Trustee or the Debtor-in-Possession has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the Trustee or Debtor-in-Possession will have sufficient funds to fulfill the obligations of Tenant under this Lease; and
(ii) The Bankruptcy Court shall have entered an Order segregating sufficient cash payable to Landlord, and/or the Trustee or Debtor-in-Possession shall have granted a valid and perfected first lien and security interest and/or mortgage in property of Tenant, Trustee or Debtor-in-Possession, acceptable as to value and kind to Landlord to secure to Landlord the obligation of the Trustee or Debtor-in-Possession to cure the monetary and/or non-monetary defaults under this Lease within the time periods set forth above.
(c) Conditions to the Assignment of the Lease in Bankruptcy Proceedings. If the Trustee or Debtor-in-Possession has assumed the Lease pursuant to the Bankruptcy Codeterms and provisions of paragraphs A and B herein, Lessee's trustee or the debtor-in-possession shall be obligated to pay reasonable use and occupancy charges for the use purpose of the Premises, such charges shall not be less than the Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
assigning (ivor elects to assign) Neither the whole nor any portion of Lessee'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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of LesseeTenant's interest under this Lease without or the estate created thereby, to any other person, such consentinterest or estate may be so assigned only if Landlord shall acknowledge in writing that the intended assignee has provided adequate assurance as defined in this section of future performance of all of the terms, covenants and conditions of this Lease to be performed by Tenant. For purposes of this section, Landlord and Tenant acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance of future performance" shall mean that each of the following conditions have been satisfied, and assignee has so acknowledged in writing.
(v1) In The assignee has submitted a current financial statement audited by an officer of assignee which shows a net worth and working capital in amounts determined to be sufficient by Landlord to assure the event future performance by such assignee of an assignment Tenant's obligation under this Lease;
2) The assignee, if required by Landlord, shall have obtained guarantees in form and substance satisfactory to Landlord from one or more persons who satisfy Landlord's reasonable standards of Lessee's interests pursuant creditworthiness; and
3) 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 this Section, the right of any assignee perform Landlord to extend the Lease Term shall be extinguishedconsent to such assignment.
Appears in 1 contract
Samples: Stock Purchase Agreement (Casa Ole Restaurants Inc)
Bankruptcy or Insolvency. In the event of (ia) If Lessee shall become a debtor any insolvency, bankruptcy, liquidation, reorganization or other similar proceedings, or any receivership proceedings in a case filed under Chapter 7 connection therewith, relative to the Company (b) any proceedings for voluntary liquidation, dissolution or Chapter 11 other winding-up of the Bankruptcy Code Company, whether or not involving insolvency or bankruptcy proceedings (collectively, the foregoing being "PROCEEDINGS", or individually, a "PROCEEDING"), then all Senior Debt, including the principal thereof, premium, if any, and Lessee or Lessee's trustee interest, including post-petition interest due thereon, shall fail to elect to assume this Lease within 60 days after the filing of such petition first be paid in full, or such additional time as payment shall have been duly provided by the courtfor, this Lease before any further payment is made with respect to Subordinated Debt. In any Proceedings, any payment or distribution of any kind or character, whether in cash, property or securities, which may be payable or deliverable with respect to Subordinated Debt shall be deemed paid or delivered directly to the holders of Senior Debt, ratably, for application in payment thereof, unless and until all Senior Debt shall have been rejectedpaid in full. Immediately thereuponIn any Proceeding, Lessor the holders of Subordinated Debt shall be entitled not have any right to possession setoff against the Subordinated Debt any Indebtedness owed by any of the Premises without further obligation holders of Subordinated Debt to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor's right to be compensated for damages Company (including, without limitation, liquidated damages pursuant to any provision hereof) or the exercise right of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition setoff under Chapter 7 or Chapter 11 Section553 of the Bankruptcy Code.
(iii) When). Anything in this Section 8 to the contrary notwithstanding, no payment or delivery shall be made to holders of Senior Debt of securities that are issued and delivered to holders of Subordinated Debt pursuant to the Bankruptcy Code, Lessee's trustee liquidation or the debtor-in-possession shall be obligated to pay reasonable use and occupancy charges for the use dissolution of the PremisesCompany or in a Proceeding, or upon any merger, consolidation, sale, lease, transfer or other disposal not prohibited by the provisions of this Agreement, by the Company, as reorganized, or by the corporation succeeding to the Company or acquiring its property and assets, if (i) such charges shall not be less than securities are subordinate and junior at least to the Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor any portion of Lessee's interest extent provided in this Lease Section 8 to the payment of all Senior Debt then outstanding and to the payment of any securities that are issued in exchange or its estate in substitution for any Senior Debt then outstanding and (ii) such securities mature no earlier than six (6) months after the Premises shall pass to any trustee, receiver, assignee for scheduled maturity of the benefit of creditors or any other person or entity, by operation of law or otherwise Indebtedness under the laws of any state having jurisdiction of the person or property of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consentBank Debt Agreement.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Bankruptcy or Insolvency. (i) If Lessee shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee or Lessee's ’s trustee shall fail to elect to assume this Lease within 60 120 days after the filing of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's ’s trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's ’s right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee's ’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 Basic Base Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor any portion of Lessee's ’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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's ’s right to terminate this Lease for any transfer of Lessee's ’s interest under this Lease without such consent.
(v) In the event of an assignment of Lessee's ’s interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Samples: Lease Agreement (National American University Holdings, Inc.)
Bankruptcy or Insolvency. 16.01 It is understood and agreed that the following shall apply in the event of the bankruptcy or insolvency of Tenant:
(iA) If Lessee shall become a debtor in a case petition is filed by, or an order for relief is entered against Tenant under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee the trustee of Tenant elects to assume this Lease for the purpose of assigning it, such election or Lesseeassignment, or both, may be made only if all of the terms and conditions of subparagraphs (B) and (D) below are satisfied. To be effective, an election to assume this Lease must be in writing and addressed to Landlord, and in Landlord's business judgment, all of the conditions hereinafter stated, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied. If the trustee shall fail fails so to elect to assume this Lease within 60 sixty (60) days after the such filing of such petition or such additional time as provided by the courtorder, this Lease shall will be deemed to have been rejected. Immediately thereupon, Lessor and Landlord shall then immediately be entitled to possession of the Premises without further obligation to Lessee Tenant or Lessee's the trustee, and this Lease, upon the election of Lessor, Lease shall terminate, but Lessorbe terminated. Landlord's right to be compensated for damages (includingin the bankruptcy proceeding, without limitationhowever, liquidated damages pursuant to any provision hereof) or the exercise of any other remedies in any shall survive such proceeding shall survive, whether or not this Lease shall be terminatedtermination.
(iiB) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated If Tenant filed a petition for reorganization under Chapters 11 or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 13 of the Bankruptcy Code.
(iii) When, pursuant to or if a proceeding filed by or against Tenant under any other chapter of the Bankruptcy CodeCode is converted to a chapter 11 or 13 proceeding and Tenant's trustee or Tenant as debtor-in-possession fails to assume this Lease within sixty (60) days from the date of the filing of such petition or conversion, Lessee's then the trustee or the debtor-in-possession shall be obligated deemed to pay reasonable use and occupancy charges for the use have rejected this Lease. To be effective, any election to assume this Lease must be in writing addressed to Landlord and, in Landlord's business judgment, all of the Premisesfollowing conditions, such charges shall not which Landlord and Tenant acknowledge to be less than commercially reasonable, must have been satisfied:
(1) The trustee or the Basic Rentdebtor-in-possession has cured or has provided to Landlord adequate assurance, Additional Rent and other sums payable by Lessee as defined in this subparagraph (B), that:
(a) It will cure all monetary defaults under this Lease within ten (10) days from the date of assumption; and
(b) It will cure all nonmonetary defaults under this Lease within thirty (30) days from the date of assumption; and
(2) The trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with adequate assurance, as hereinafter defined, that within ten (10) days from the date of assumption Landlord will be compensated for any pecuniary loss it has incurred arising from the default of Tenant, the trustee, or the debtor-in-possession, as recited in Landlord's written statement of pecuniary loss sent to the trustee or debtor-in-possession.
(3) The trustee or the debtor-in-possession has provided Landlord with adequate assurance of the future performance of each of Tenant's obligations under this Lease; provided, however, that:
(a) From and after the date of assumption of this Lease, it shall pay all monetary obligations, including the Base and Additional Rents payable under this lease in advance in equal monthly installments on each date that such Rents are payable.
(ivb) Neither the whole nor any portion of Lessee's interest in this Lease or its estate in the Premises It shall pass to any trusteealso deposit with Landlord, receiver, assignee as security for the benefit timely payment of creditors or Rent, the amount set forth in Section 1.01 I;
(c) If not otherwise required by the terms of this Lease, it shall also pay in advance, on each day that any installment of Base Rent is payable, one-twelfth of Tenant's annual tax, escalation and other person or entity, by operation of law or otherwise under the laws of any state having jurisdiction of the person or property of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest obligations under this Lease without such consentLease; and
(d) The obligations imposed upon the trustee or the debtor-in-possession will continue for Tenant after the completion of bankruptcy proceedings.
(v4) In the event For purposes of an assignment of Lessee's interests pursuant to this Sectionsubparagraph (B), the right of any assignee to extend the Lease Term shall be extinguished."adequate assurance" means that:
Appears in 1 contract
Samples: Office Space Lease (Medical Staffing Network Holdings Inc)
Bankruptcy or Insolvency. (i) If Lessee shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee or Lessee's trustee shall fail to elect to assume this Lease within 60 days after the filing of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) A. Neither the whole nor any portion of LesseeTenant's interest in this Lease Lease, nor any estate hereby created in Tenant nor any interest herein or its estate in the Premises therein, shall pass to any trustee, receiverexcept as may specifically be provided pursuant to 11 U.S.C. 101 ET SEQ. (the Bankruptcy Code"), or to any receiver or assignee for the benefit of creditors or any other person or entity, otherwise by operation of law except as may specifically be provided pursuant to the Bankruptcy Code.
B. Upon the filing of a petition by or otherwise against Tenant under the laws Bankruptcy Code, Tenant, as debtor and as debtor in possession, and any trustee who may be appointed, agree as follows:
(i) to perform each and every obligation of Tenant under this Lease, including, but not limited to, the manner of use and operation as provided in Article I and Article VI until such time as this Lease is either rejected or assumed by order of the United States Bankruptcy Court; (ii) to pay monthly in advance on the first day of each month, as reasonable compensation for use and occupancy of the Demised Premises, an amount equal to the monthly installment of Fixed Rent and Additional Rent otherwise due pursuant to this Lease and to pay Percentage Rent monthly at the percentage set forth in this Lease for the year in which such month falls on all sales during such month in excess of one-twelfth (1/12th) of the Base Gross Sales for such year, with payment of all such percentage rent to be made by the fifteenth (15th) day of the succeeding month; (iii) to reject or assume this Lease within sixty (60) days of the appointment of such trustee under Chapter 7 of the Bankruptcy Code or within one hundred twenty (120) days (or such shorter term as Landlord, in its sole discretion, may deem reasonable, so long as notice of such period is given) of the filing of a petition under any other Chapter of the Bankruptcy Code; (iv) to give Landlord at least forty-five (45) days' prior written notice of any state having jurisdiction proceeding related to any assumption of this Lease; (v) to give at least thirty (30) days' prior written notice of any abandonment of the person or Demised Premises, with any such abandonment to be deemed a rejection of this Lease and an abandonment of any property not previously moved from the Demised Premises; (vi) to do all other things of Lessee, unless Lessor shall benefit to Landlord otherwise required under the Bankruptcy Code; (vii) to be deemed to have rejected this Lease in the event of the failure to comply with any of the above; and (viii) to have consented to the entry of an order by an appropriate United States Bankruptcy Court providing all of the above, waiving notice and hearing of the entry of same.
C. No default of this Lease by Tenant, either prior to or subsequent to the filing of such transfer. No acceptance by Lessor of rent or any other payments from any such trusteea petition, receiver, assignee, person or other entity shall be deemed to constitute such consent have been waived unless expressly done so in writing by Lessor nor shall it be deemed Landlord. It is understood and agreed that this is a waiver lease of Lessor's right real property in a shopping center and that, therefore, Section 365(b)(3) of the Bankruptcy Code is applicable to terminate any proposed assumption of this Lease in a bankruptcy case. Included within and in addition to any other conditions or obligations imposed upon Tenant or its successor in the event of assumption and/or assignments are the following: (i) the cure of any monetary defaults and the reimbursement of any pecuniary loss immediately upon entry of a court order providing for assumption and/or assignment; (ii) the deposit of a sum equal to three (3) months rent to be held by Landlord as a security deposit; (iii) that the use of the Demised Premises remain as set forth in Article VI and the quality, quantity and/or lines of merchandise of any transfer goods or services required to be offered for sale remain unchanged; (iv) that the debtor, debtor in possession, trustee, or assignee of Lessee's interest under such entity demonstrates in writing that it has sufficient background including, but not limited to, substantial retailing experience in shopping centers of comparable size and financial ability to operate a retail establishment of the Demised Premises in the manner contemplated in this Lease without such consent.
Lease, and meets all other reasonable criteria of Landlord as did Tenant upon execution of this Lease; (v) In that the event prior written consent of any Mortgagee to which this Lease has been assigned as collateral security; (vi) that the Demised Premises, at all times, remains a single store and no physical changes of any kind may be made to the Demised Premises unless in compliance with the applicable provisions of this Lease, and (vii) that Tenant shall pay any and all reasonable costs and expenses (including but not limited to reasonable legal fees) incurred by Landlord in connection with any such filing of a petition by or against Tenant under the Bankruptcy Code.
D. If this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, any and all monies or other considerations payable or otherwise delivered in connection with such assignment shall be paid or delivered to Landlord, shall be and remain the exclusive property of Landlord and shall not constitute property of Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code. Any and all monies or other considerations constituting Landlord's property under the preceding sentence not paid or delivered to Landlord upon the receipt thereof by Tenant or any Trustee shall be held in trust for the benefit of Landlord and shall be promptly paid to Landlord upon the entry of an assignment of Lessee's interests pursuant to this Section, appropriate order by the right of any assignee to extend the Lease Term shall be extinguishedUnited States Bankruptcy Court.
Appears in 1 contract
Samples: Lease (Dm Management Co /De/)
Bankruptcy or Insolvency. (ia) If Lessee shall become a debtor in a case filed under Chapter 7 or Chapter 11 of the Bankruptcy Code and Lessee or Lessee's trustee shall fail to elect to assume this Lease within 60 days after the filing of such petition or such additional time as provided by the courtcourt within such 60-day period, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor'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.
(ii) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise any and all remedies available to it if, at any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 of the Bankruptcy Code.
(iii) When, pursuant to the Bankruptcy Code, Lessee'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 Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(ivb) Neither the whole nor any portion of Lessee's interest in this Lease or its estate in the Premises shall pass to any trustee, receiver, conservator, 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 Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consent.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Samples: Lease Agreement (Navarre Corp /Mn/)
Bankruptcy or Insolvency. In no event shall this Lease be assigned or assignable by operation of law and in no event shall this Lease be an asset of Tenant in any receivership, bankruptcy, insolvency or reorganization proceeding. In the event:
(ia) If Lessee shall become A court makes or enters any decree or order adjudging Tenant to be insolvent, or approving as properly filed by or against Tenant a debtor in a case filed petition seeking reorganization or other arrangement of Tenant under Chapter 7 or Chapter 11 any provisions of the Bankruptcy Code or any applicable state law, or directing the winding up or liquidation of Tenant and Lessee such decree or Lessee's trustee order shall fail to elect to assume this Lease within 60 days after the filing have continued for a period of such petition or such additional time as provided by the court, this Lease shall be deemed to have been rejected. Immediately thereupon, Lessor shall be entitled to possession of the Premises without further obligation to Lessee or Lessee's trustee, and this Lease, upon the election of Lessor, shall terminate, but Lessor's right to be compensated for damages thirty (including, without limitation, liquidated damages pursuant to any provision hereof30) or the exercise of any other remedies in any such proceeding shall survive, whether or not this Lease shall be terminated.days;
(iib) An assumption of this Lease in accordance with Section 7.02(f)(i) shall not limit Lessor's right to declare an Event of Default hereunder and exercise Tenant makes or suffers any and all remedies available to it if, at transfer which constitutes a fraudulent or otherwise avoidable transfer under any time after such assumption, Lessee is liquidated or files or has filed against it a subsequent petition under Chapter 7 or Chapter 11 provisions of the Bankruptcy Code.Code or any applicable state law;
(iiic) When, pursuant to the Bankruptcy Code, Lessee's trustee or the debtor-in-possession shall be obligated to pay reasonable use and occupancy charges Tenant assigns its assets for the use benefit of its creditors; or
(d) The material part of the Premises, such charges shall not be less than the Basic Rent, Additional Rent and other sums payable by Lessee under this Lease.
(iv) Neither the whole nor property of Tenant or any portion property essential to Tenant's business or of LesseeTenant's interest in this Lease is sequestered, attached or its estate executed upon, and Tenant fails to secure a return or release of such property within ten (10) days thereafter, or prior to sale pursuant to such sequestration, attachment or levy, whichever is earlier; then this Lease shall, at Landlord's election, immediately terminate and be of no further force or effect whatsoever, without the necessity for any further action by Landlord, except that Tenant shall not be relieved of obligations which have accrued prior to the date of such termination. Upon such termination, the provisions herein relating to the expiration or earlier termination of this Lease shall control and Tenant shall immediately surrender the Premises in the Premises condition required by the provisions of this Lease. Additionally, Landlord shall pass be entitled to any trusteeall relief, receiverincluding recovery of damages from Tenant, assignee for which may from time to time be permitted, or recoverable, under the benefit of creditors Bankruptcy Code or any other person or entity, by operation of law or otherwise under the laws of any applicable state having jurisdiction of the person or property of Lessee, unless Lessor shall have consented to such transfer. No acceptance by Lessor of rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to constitute such consent by Lessor nor shall it be deemed a waiver of Lessor's right to terminate this Lease for any transfer of Lessee's interest under this Lease without such consentlaws.
(v) In the event of an assignment of Lessee's interests pursuant to this Section, the right of any assignee to extend the Lease Term shall be extinguished.
Appears in 1 contract
Samples: Office Lease (Noosh Inc)
