Bankruptcy or Insolvency. It is understood and agreed that the following shall apply in the event of the bankruptcy or insolvency of Tenant: (a) If a petition is filed by, or an order for relief is entered against Tenant under Chapter 7 of the Bankruptcy Code and the trustee of Tenant elects to assume this Lease for the purpose of assigning it, such election or assignment, 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 fails so to elect to assume this Lease within sixty (60) days after his appointment, this Lease will be deemed to have been rejected, and Landlord shall then immediately be entitled to possession of the Premises without further obligation to Tenant or the trustee and this Lease shall be terminated. Landlord’s right to be compensated for damages in the bankruptcy proceeding, however, shall survive such termination. (b) If Tenant files a petition for reorganization under Chapters 11 or 13 of the Bankruptcy Code, or if a proceeding filed by or against Tenant under any other chapter of the Bankruptcy Code is converted to a Chapter 11 or 13 proceeding and Tenant’s trustee or Tenant as debtor-in-possession fails to assume this Lease within sixty (60) days from the date of the filing of such petition or conversion, then the trustee or the debtor-in-possession shall be deemed to have rejected this Lease. To be effective any election to assume this Lease must be in writing addressed to Landlord and, in Landlord’s business judgment, all of the following conditions, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied: (i) The trustee or the debtor-in-possession has cured or has provided to Landlord adequate assurance, as defined in this subparagraph (b), that the trustee will cure all monetary defaults under this Lease within ten (10) days from the date of assumption. (ii) The trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with adequate assurance, as hereinafter defined, that within ten (10) days from the date of assumption Landlord will be compensated for any pecuniary loss it has incurred arising from the default of Tenant, the trustee, or the debtor-in-possession, as recited in Landlord’s written statement of pecuniary loss sent to the trustee or debtor-in-possession. (iii) The trustee or the debtor-in-possession has provided Landlord with adequate assurance of the future performance of each of Tenant’s obligations under this Lease; provided, however, that: 1. From and after the date of assumption of this Lease, the trustee or the debtor-in-possession shall pay Rent payable under this Lease in advance in equal monthly installments on each date that such Rents are payable; 2. The trustee or debtor-in-possession shall also deposit with Landlord, as security for the timely payment of Rent, an amount equal to three (3) months’ Rent and other monetary charges accruing under this Lease; and 3. The obligations imposed upon the trustee or the debtor-in-possession will continue for Tenant after the completion of bankruptcy proceedings. (iv) Landlord has determined that the assumption of this Lease will not: (1) Breach any provision in any other lease, mortgage, financing agreement, or other agreement by which Landlord is bound relating to the Property or Building in which the Premises is located; or (2) Disrupt, in Landlord’s judgment, the tenant mix of the Building or any other attempt by Landlord to provide a specific variety of tenants in the Building which, in Landlord’s judgment, would be most beneficial to all of the tenants thereof and would enhance the image, reputation, and profitability thereof. (v) For purposes of this subparagraph (b), “adequate assurance” means that: (1) Landlord determines that the trustee or the debtor-in-possession has, and will continue to have, sufficient unencumbered assets, after the payment of all secured obligations and administrative expenses, to assure Landlord that the trustee or the debtor-in-possession will have sufficient funds timely to fulfill Tenant’s obligations under this Lease; and (2) An order shall have been entered segregating sufficient cash payable to Landlord and/or a valid and perfected first lien and security interest shall have been granted in property of Tenant, trustee, or debtor-in-possession which is acceptable in value and kind to Landlord, to secure to Landlord the obligation of the trustee or debtor-in-possession to cure all monetary and nonmonetary defaults under this Lease within the time periods set forth above. (c) In the event this Lease is assumed by a trustee appointed for Tenant or by Tenant as debtor-in-possession under the provisions of subparagraph (b) above and, thereafter, Tenant is either adjudicated bankrupt or files a subsequent petition for arrangement under Chapter 11 of the Bankruptcy Code, then Landlord may, at its option, terminate this Lease and all the tenant’s rights under it, by giving written notice of Landlord’s election so to terminate. (d) If the trustee or the debtor-in-possession has assumed this Lease, pursuant to subparagraph (a) or (b) above, to assign or to elect to assign Tenant’s interest under this Lease or the estate created by that interest to any other person, such interest or estate may be assigned only if the intended assignee has provided adequate assurance of future performance, as defined in this subparagraph (d), of all of the terms, covenants, and conditions of this Lease. (i) For purposes of this subparagraph (d), “adequate assurance of future performance” means that Landlord has ascertained that each of the following conditions has been satisfied: (1) The assignee has submitted a current financial statement, audited by a certified public accountant, which shows a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future performance by the assignee of the tenant’s obligations under this Lease; (2) If requested by Landlord, the assignee will obtain guarantees, in form and substance satisfactory to Landlord (i.e. letter(s) of credit), from one or more persons who satisfy Landlord’s standards of creditworthiness; and (3) Landlord has obtained consents or waivers from any third parties which may be required under any lease, mortgage, financing arrangement, or other agreement by which Landlord is bound, to enable Landlord to permit such assignment. (e) When, pursuant to the Bankruptcy Code, the trustee or the debtor-in-possession is obligated to pay reasonable use and occupancy charges for the use of all or part of the Premises, it is agreed that such charges will not be less than the Rent as defined in this Lease. (f) Neither Tenant’s interest in this Lease nor any estate of Tenant created in this Lease shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, nor otherwise by operation of law under the laws of any state having jurisdiction of the person or property of Tenant, unless Landlord consents in writing to such transfer. Landlord’s acceptance of rent or any other payments from any trustee, receiver, assignee, person, or other entity will not be deemed to have waived, or waive, either the requirement of Landlord’s consent or Landlord’s right to terminate this Lease for any transfer of Tenant’s interest under this Lease without such consent.
Appears in 1 contract
Samples: Real Estate Sale Agreement (Behringer Harvard Reit I Inc)
Bankruptcy or Insolvency. It is understood and agreed Section 19.1. If the Tenant shall become a debtor under the United States Bankruptcy Code, 11 U.S.C. §§101 et seq. (the “Bankruptcy Code”) then, to the extent that the following shall apply in the event of the bankruptcy or insolvency of Tenant:
(a) If a petition is filed by, or an order for relief is entered against Tenant under Chapter 7 of the Bankruptcy Code and the trustee of Tenant elects to assume this Lease for the purpose of assigning it, such election or assignment, or both, may be made only if all applicable or affect the provisions of this lease, the terms and conditions of subparagraphs (b) and (d) below are satisfied. To following provisions shall also 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 satisfiedapplicable. If the trustee fails so to elect to assume this Lease within sixty (60) days after his appointment, this Lease will be deemed to have been rejected, and Landlord shall then immediately be entitled to possession of the Premises without further obligation to Tenant or the trustee and this Lease shall be terminated. Landlord’s right to be compensated for damages in the bankruptcy proceeding, however, shall survive such termination.
(b) If Tenant files a petition for reorganization under Chapters 11 or 13 of the Bankruptcy Code, or if a proceeding filed by or against Tenant under any other chapter of the Bankruptcy Code is converted to a Chapter 11 or 13 proceeding and Tenant’s trustee or Tenant as debtor-in-possession fails to assume this Lease within sixty (60) days from the date of the filing of such petition or conversion, then the trustee or the debtor-in-possession shall be deemed to have rejected this Lease. To be effective any election to assume this Lease must be in writing addressed to Landlord and, in Landlord’s business judgment, all of the following conditions, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied:
(i) The trustee or the debtor-in-possession has cured or has provided to Landlord adequate assurance, as defined in this subparagraph (b), that the trustee will cure all monetary defaults under this Lease within ten (10) days from the date of assumption.
(ii) The trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with adequate assurance, as hereinafter defined, that within ten (10) days from the date of assumption Landlord will be compensated for any pecuniary loss it has incurred arising from the default of Tenant, the trustee, or the debtor-in-possession, as recited in Landlord’s written statement of pecuniary loss sent to the trustee or debtor-in-possession.
(iii) The trustee or the debtor-in-possession has provided Landlord with adequate assurance of the future performance of each of Tenant’s obligations under this Lease; provided, however, that:
1. From and after the date of assumption of this Lease, the trustee or the debtor-in-possession shall pay Rent payable under this Lease in advance in equal monthly installments on each date that such Rents are payable;
2. The trustee or debtor-in-possession shall also deposit with Landlord, as security for the timely payment of Rent, an amount equal fail to three elect to assume this lease within sixty (360) months’ Rent and other monetary charges accruing under this Lease; and
3. The obligations imposed upon the trustee or the debtor-in-possession will continue for Tenant days after the completion commencement of bankruptcy proceedings.
(iv) a case under the Bankruptcy Code, this lease shall be deemed to have been rejected; and the Landlord has determined that shall be thereafter immediately entitled to possession of the assumption demised premises and this lease shall be terminated subject to and in accordance with the provisions of this Lease will not:
lease and of law (1including such provisions for damages). No election to assume (and, if applicable to assign) Breach any provision in any other lease, mortgage, financing agreement, or other agreement this lease by which Landlord is bound relating to the Property or Building in which the Premises is located; or
(2) Disrupt, in Landlord’s judgment, the tenant mix of the Building or any other attempt by Landlord to provide a specific variety of tenants in the Building which, in Landlord’s judgment, would be most beneficial to all of the tenants thereof and would enhance the image, reputation, and profitability thereof.
(v) For purposes of this subparagraph (b), “adequate assurance” means that:
(1) Landlord determines that the trustee or the debtor-in-possession has, and will continue to have, sufficient unencumbered assets, after the payment of all secured obligations and administrative expenses, to assure Landlord that the trustee or the debtor-in-possession will have sufficient funds timely to fulfill Tenant’s obligations under this Lease; and
(2) An order shall have been entered segregating sufficient cash payable to Landlord and/or a valid and perfected first lien and security interest shall have been granted in property of Tenant, trustee, or debtor-in-possession which is acceptable in value and kind to Landlord, to secure to Landlord the obligation of the trustee or debtor-in-possession shall be permitted or effective unless: (i) all defaults shall have been cured and the Landlord shall have been provided with adequate assurances reasonably satisfactory to cure the Landlord, including (a) any reasonably required guaranties and/or security deposits, and (b) any other reasonably required assurances that there will continue to be sufficient funds and personnel available to professionally merchandise, stock, promote, staff and operate the demised premises in strict compliance with all monetary provisions of this lease; and nonmonetary defaults under (ii) neither such assumption nor the operation of the demised premises subsequent thereto shall, in the Landlord’s reasonable judgment, cause or result in any breach or other violation of any provision of this Lease within or any applicable lease, mortgage or other contract, or disrupt the time periods set forth above.
tenant mix of the Shopping Center; and (ciii) In the event assumption and, if applicable, the assignment of this Lease is assumed lease satisfies in full the provisions of the Bankruptcy Code, including, without limitation, Sections 365(b)(1) and (3) and (f)(2); and (iv) the assumption has been ratified and approved by a order of such court or courts as have final jurisdiction over the Bankruptcy Code and the case. No assignment of this lease by the trustee appointed for Tenant or by Tenant as debtor-in-possession under shall be permitted or effective unless the proposed assignee likewise shall have satisfied (i), (ii), (iii) and (iv) of the preceding sentence regarding such assignment, and any such assignment shall, without limitation, be subject to the provisions of subparagraph (b) above and, thereafter, Tenant is either adjudicated bankrupt or files a subsequent petition for arrangement under Chapter 11 of the Bankruptcy Code, then Landlord may, at its option, terminate this Lease and all the tenant’s rights under it, by giving written notice of Landlord’s election so to terminate.
(d) If the trustee or the debtor-in-possession has assumed this Lease, pursuant to subparagraph (a) or (b) above, to assign or to elect to assign Tenant’s interest under this Lease or the estate created by that interest to any other person, such interest or estate may be assigned only if the intended assignee has provided adequate assurance of future performance, as defined in this subparagraph (d), of all of the terms, covenants, and conditions of this Lease.
(i) For purposes of this subparagraph (d), “adequate assurance of future performance” means that Landlord has ascertained that each of the following conditions has been satisfied:
(1) The assignee has submitted a current financial statement, audited by a certified public accountant, which shows a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future performance by the assignee of the tenant’s obligations under this Lease;
(2) If requested by Landlord, the assignee will obtain guarantees, in form and substance satisfactory to Landlord (i.e. letter(s) of credit), from one or more persons who satisfy Landlord’s standards of creditworthiness; and
(3) Landlord has obtained consents or waivers from any third parties which may be required under any lease, mortgage, financing arrangement, or other agreement by which Landlord is bound, to enable Landlord to permit such assignment.
(e) When, Section 10.3 hereof. When pursuant to the Bankruptcy Code, 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 Premisescharges, it is agreed that such charges will shall not be less than the Rent as defined in this Lease.
(f) minimum rent and other charges specified herein to be payable by the Tenant. Neither the Tenant’s interest or estate in this Lease the demised premises herein or created hereby nor any lesser interest or estate of the Tenant created in this Lease shall pass to anyone under any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, nor otherwise by operation of law under the laws of any state having or jurisdiction without the prior written consent of the person Landlord. In no event shall this lease, if the term hereof has expired or property has been terminated in accordance with the provisions of Tenantthis lease, unless Landlord consents in writing be revived, and no stay or other proceedings shall nullify, postpone or otherwise affect the expiration or earlier termination of the term of this lease pursuant to such transfer. Landlord’s acceptance the provisions of rent this ARTICLE XIX or any other payments from any trustee, receiver, assignee, personARTICLE XX hereof, or other entity will not be deemed to have waived, or waive, either prevent the requirement Landlord from regaining possession of Landlord’s consent or Landlord’s right to terminate this Lease for any transfer of Tenant’s interest under this Lease without such consentthe demised premises thereupon.
Appears in 1 contract
Samples: Lease Agreement (Nbty Inc)
Bankruptcy or Insolvency. It is understood and agreed that the following shall apply in the event of the bankruptcy or insolvency of Tenant:
(a) If a petition is filed by, or an order for relief is entered against Tenant under Chapter 7 of the Bankruptcy Code and the trustee of Tenant elects to assume this Lease for the purpose of assigning it, such election or assignment, 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 '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 fails so to elect to assume this Lease within sixty (60) days after his appointment, this Lease will be deemed to have been rejected, and Landlord shall then immediately be entitled to possession of the Premises without further obligation to Tenant or the trustee and this Lease shall be terminated. Landlord’s 's right to be compensated for damages in the bankruptcy proceeding, however, shall survive such termination.
(b) If Tenant files a petition for reorganization under Chapters 11 or 13 of the Bankruptcy Code, or if a proceeding filed by or against Tenant under any other chapter of the Bankruptcy Code is converted to a Chapter 11 or 13 proceeding and Tenant’s 's trustee or Tenant as debtor-in-possession fails to assume this Lease within sixty (60) days from the date of the filing of such petition or conversion, then the trustee or the debtor-in-possession shall be deemed to have rejected this Lease. To be effective any election to assume this Lease must be in writing addressed to Landlord and, in Landlord’s 's business judgment, all of the following conditions, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied:
(i) The trustee or the debtor-in-possession has cured or has provided to Landlord adequate assurance, as defined in this subparagraph (b), that the that:
(1) The trustee will cure all monetary defaults under this Lease 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.
(ii) The trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with adequate assurance, as hereinafter defined, that within ten (10) days from the date of assumption Landlord will be compensated for any pecuniary loss it has incurred arising from the default of Tenant, the trustee, or the debtor-in-possession, as recited in Landlord’s '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 's obligations under this Lease; provided, however, that:
(1. ) From and after the date of assumption of this Lease, the trustee or the debtor-in-possession shall pay Rent the Base and Additional Rents payable under this Lease in advance in equal monthly installments on each date that such Rents are payable;.
(2. ) The trustee or debtor-in-possession shall also deposit with Landlord, as security for the timely payment of Rent, an amount equal to three (3) months’ ' Base Rent and other monetary charges accruing under this Lease;
(3) 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 (1/12) of Tenant's annual Taxes, Operating Expenses, and other obligations under this Lease; and
3. (4) The obligations imposed upon the trustee or the debtor-in-possession will continue for Tenant after the completion of bankruptcy proceedings.
(iv) Landlord has determined that the assumption of this Lease will not:
(1) Breach any provision in any other lease, mortgage, financing agreement, or other agreement by which Landlord is bound relating to the Property Property, Building or Building Project in which the Premises is located; or
(2) Disrupt, in Landlord’s 's judgment, the tenant mix of the Building or Project or any other attempt by Landlord to provide a specific variety of tenants in the Building or Project which, in Landlord’s 's judgment, would be most beneficial to all of the tenants thereof and would enhance the image, reputation, and profitability thereof.
(v) For purposes of this subparagraph (b), “"adequate assurance” " means that:
(1) Landlord determines that the trustee or the debtor-in-possession has, and will continue to have, sufficient unencumbered assets, after the payment of all secured obligations and administrative expenses, to assure Landlord that the trustee or the debtor-in-possession will have sufficient funds timely to fulfill Tenant’s obligations under this Lease; and
(2) An order shall have been entered segregating sufficient cash payable to Landlord and/or a valid and perfected first lien and security interest shall have been granted in property of Tenant, trustee, or debtor-in-possession which is acceptable in value and kind to Landlord, to secure to Landlord the obligation of the trustee or debtor-in-possession to cure all monetary and nonmonetary defaults under this Lease within the time periods set forth above.
(c) In the event this Lease is assumed by a trustee appointed for Tenant or by Tenant as debtor-in-possession under the provisions of subparagraph (b) above and, thereafter, Tenant is either adjudicated bankrupt or files a subsequent petition for arrangement under Chapter 11 of the Bankruptcy Code, then Landlord may, at its option, terminate this Lease and all the tenant’s rights under it, by giving written notice of Landlord’s election so to terminate.
(d) If the trustee or the debtor-in-possession has assumed this Lease, pursuant to subparagraph (a) or (b) above, to assign or to elect to assign Tenant’s interest under this Lease or the estate created by that interest to any other person, such interest or estate may be assigned only if the intended assignee has provided adequate assurance of future performance, as defined in this subparagraph (d), of all of the terms, covenants, and conditions of this Lease.
(i) For purposes of this subparagraph (d), “adequate assurance of future performance” means that Landlord has ascertained that each of the following conditions has been satisfied:
(1) The assignee has submitted a current financial statement, audited by a certified public accountant, which shows a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future performance by the assignee of the tenant’s obligations under this Lease;
(2) If requested by Landlord, the assignee will obtain guarantees, in form and substance satisfactory to Landlord (i.e. letter(s) of credit), from one or more persons who satisfy Landlord’s standards of creditworthiness; and
(3) Landlord has obtained consents or waivers from any third parties which may be required under any lease, mortgage, financing arrangement, or other agreement by which Landlord is bound, to enable Landlord to permit such assignment.
(e) When, pursuant to the Bankruptcy Code, the trustee or the debtor-in-possession is obligated to pay reasonable use and occupancy charges for the use of all or part of the Premises, it is agreed that such charges will not be less than the Rent as defined in this Lease.
(f) Neither Tenant’s interest in this Lease nor any estate of Tenant created in this Lease shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, nor otherwise by operation of law under the laws of any state having jurisdiction of the person or property of Tenant, unless Landlord consents in writing to such transfer. Landlord’s acceptance of rent or any other payments from any trustee, receiver, assignee, person, or other entity will not be deemed to have waived, or waive, either the requirement of Landlord’s consent or Landlord’s right to terminate this Lease for any transfer of Tenant’s interest under this Lease without such consent.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Bankruptcy or Insolvency. It is understood and agreed that If the following shall apply in the event of the bankruptcy or insolvency of Tenant:
(a) If Tenant becomes a petition is filed by, or an order for relief is entered against Tenant debtor under Chapter 7 of the United States Bankruptcy Code and the trustee of Tenant elects to assume this Lease for the purpose of assigning it, such election or assignmentCode, 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 fails so to elect to assume this Lease within sixty (60) days after his appointment, this Lease will be deemed to have been rejected, and Landlord shall then immediately be entitled to possession of the Premises without further obligation to Tenant or the trustee and this Lease shall be terminated. Landlord’s right to be compensated for damages in the bankruptcy proceeding, however, shall survive such termination.
(b) If Tenant files event that a petition for reorganization or adjustment of debts is filed concerning the Tenant under Chapters Chapter 11 or Chapter 13 of the Bankruptcy Code, or if a proceeding filed by or against Tenant under any other chapter of the Bankruptcy Code Chapter 7 is converted transferred to a Chapter 11 or 13 proceeding and 13, the Trustee or the Tenant’s trustee or Tenant , as debtorDebtor-in-possession fails to assume this Lease within sixty (60) days from the date of the filing of such petition or conversionPossession, then the trustee or the debtor-in-possession shall be deemed to have rejected this Lease. To be effective any No election by the Trustee or Debtor-in-Possession to assume this Lease must shall be in writing addressed to Landlord and, in Landlord’s business judgment, all effective unless each of the following conditions, which Landlord and Tenant hereby acknowledge to be commercially reasonablereasonable in the context of a bankruptcy proceeding, must have has been satisfied, and the Landlord has so acknowledged in writing:
(ia) The trustee Trustee or the debtorDebtor-in-possession Possession has cured 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.
(b) The Trustee or Debtor-in-Possession has compensated, or has provided to the Landlord adequate assurance, as defined in this subparagraph (b), that the trustee will cure all monetary defaults under this Lease within ten (10) days from the date of assumption.
(ii) The trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with adequate assurance, as hereinafter defined, assurance that within ten (10) days from of the date of assumption assumption, the Landlord will be compensated compensated, for any pecuniary loss it has incurred by the Landlord arising from the default of the Tenant, the trustee, Trustee or the debtorDebtor-in-possession, Possession as recited in the Landlord’s 's written statement of pecuniary loss sent to the trustee Trustee or debtorDebtor-in-possessionPossession.
(iiic) The trustee Trustee or the debtorDebtor-in-possession Possession has provided the Landlord with adequate assurance of the future performance of each of the Tenant’s 's, the Trustee's, or Debtor-in-Possession's obligations under this Lease; provided, however, however that:
(1. From and after the date of assumption of this Lease, the trustee ) The Trustee or the debtorDebtor-in-possession shall pay Rent payable under this Lease in advance in equal monthly installments on each date that such Rents are payable;
2. The trustee or debtor-in-possession Possession shall also deposit with the Landlord, as security for the timely payment of Rentrent and other sums due hereunder, an amount equal to three (3) months’ months Base Rent, Additional Rent and other monetary charges accruing under this Lease; and
3. (2) The obligations imposed upon the trustee Trustee or Debtor-in- Possession shall continue with respect to the debtor-in-possession will continue for Tenant or any assignee of this Lease after the completion of the bankruptcy proceedings.
(iv) Landlord has determined that the assumption of this Lease will not:
(1) Breach any provision in any other lease, mortgage, financing agreement, or other agreement by which Landlord is bound relating to the Property or Building in which the Premises is located; or
(2) Disrupt, in Landlord’s judgment, the tenant mix of the Building or any other attempt by Landlord to provide a specific variety of tenants in the Building which, in Landlord’s judgment, would be most beneficial to all of the tenants thereof and would enhance the image, reputation, and profitability thereof.
(vd) For purposes of this subparagraph (b)Paragraph, “Landlord and Tenant acknowledge that, in the context of the bankruptcy proceeding of the Tenant, at a minimum, "adequate assurance” means that" shall mean:
(1) Landlord determines that the trustee or the debtor-in-possession has, and will continue to have, sufficient unencumbered assets, after the payment of all secured obligations and administrative expenses, to assure Landlord that the trustee or the debtor-in-possession will have sufficient funds timely to fulfill Tenant’s obligations under this Lease; and
(2) An order shall have been entered segregating sufficient cash payable to Landlord and/or a valid and perfected first lien and security interest shall have been granted in property of Tenant, trustee, or debtor-in-possession which is acceptable in value and kind to Landlord, to secure to Landlord the obligation of the trustee or debtor-in-possession to cure all monetary and nonmonetary defaults under this Lease within the time periods set forth above.
(c) In the event this Lease is assumed by a trustee appointed for Tenant or by Tenant as debtor-in-possession under the provisions of subparagraph (b) above and, thereafter, Tenant is either adjudicated bankrupt or files a subsequent petition for arrangement under Chapter 11 of the Bankruptcy Code, then Landlord may, at its option, terminate this Lease and all the tenant’s rights under it, by giving written notice of Landlord’s election so to terminate.
(d) If the trustee or the debtor-in-possession has assumed this Lease, pursuant to subparagraph (a) or (b) above, to assign or to elect to assign Tenant’s interest under this Lease or the estate created by that interest to any other person, such interest or estate may be assigned only if the intended assignee has provided adequate assurance of future performance, as defined in this subparagraph (d), of all of the terms, covenants, and conditions of this Lease.
(i) For purposes of this subparagraph (d), “adequate assurance of future performance” means that Landlord has ascertained that each of the following conditions has been satisfied:
(1) The assignee has submitted a current financial statement, audited by a certified public accountant, which shows a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future performance by the assignee of the tenant’s obligations under this Lease;
(2) If requested by Landlord, the assignee will obtain guarantees, in form and substance satisfactory to Landlord (i.e. letter(s) of credit), from one or more persons who satisfy Landlord’s standards of creditworthiness; and
(3) Landlord has obtained consents or waivers from any third parties which may be required under any lease, mortgage, financing arrangement, or other agreement by which Landlord is bound, to enable Landlord to permit such assignment.
(e) When, pursuant to the Bankruptcy Code, the trustee or the debtor-in-possession is obligated to pay reasonable use and occupancy charges for the use of all or part of the Premises, it is agreed that such charges will not be less than the Rent as defined in this Lease.
(f) Neither Tenant’s interest in this Lease nor any estate of Tenant created in this Lease shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, nor otherwise by operation of law under the laws of any state having jurisdiction of the person or property of Tenant, unless Landlord consents in writing to such transfer. Landlord’s acceptance of rent or any other payments from any trustee, receiver, assignee, person, or other entity will not be deemed to have waived, or waive, either the requirement of Landlord’s consent or Landlord’s right to terminate this Lease for any transfer of Tenant’s interest under this Lease without such consent.
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:
(a) If a petition is filed by, or an order for relief is entered against Tenant under Chapter 7 of the Bankruptcy Code and the trustee of Tenant elects to assume this Lease for the purpose of assigning it, such election or assignment, 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 judgmentjudgement, all of the conditions hereinafter 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 sixty (60) days after his appointment, this Lease will be deemed to have been rejected, and Landlord shall then immediately be entitled to possession of the Premises without further obligation to Tenant or the trustee and this Lease shall be terminated. Landlord’s right to be compensated for damages in the bankruptcy proceeding, however, shall survive such termination.
(b) If Tenant files a petition for reorganization under Chapters 11 or 13 of the Bankruptcy Code, or if a proceeding filed by or against Tenant under any other chapter of the Bankruptcy Code is converted to a Chapter 11 or 13 proceeding and Tenant’s trustee or Tenant as debtor-in-possession fails to assume this Lease within sixty (60) days from the date of the filing of such petition or conversion, then the trustee or the debtor-in-possession shall be deemed to have rejected this Lease. To be effective any election to assume this Lease must be in writing addressed to Landlord and, in Landlord’s business judgmentjudgement, all of the following conditions, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied:
(i) The trustee or the debtor-in-possession has cured or has provided to Landlord adequate assurance, as defined in this subparagraph (b), that the that:
(1) The trustee will cure all monetary defaults under this Lease 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.
(ii) The trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with adequate assurance, as hereinafter defined, that within ten (10) days from the date of assumption Landlord will be compensated for any pecuniary loss it has incurred arising from the default of Tenant, the trustee, or the debtor-in-possession, as recited in Landlord’s written statement of pecuniary loss sent to the trustee or debtor-in-possession.
(iii) The trustee or the debtor-in-possession has provided Landlord with adequate assurance of the future performance of each of Tenant’s obligations under this Lease; provided, however, that:
(1. ) From and after the date of assumption of this Lease, the trustee or the debtor-in-possession shall pay Rent the Base and Additional Rents payable under this Lease in advance in equal monthly installments on each date that such Rents are payable;.
(2. ) The trustee or debtor-in-possession shall also deposit with Landlord, as security for the timely payment of Rent, an amount equal to three (3) months’ Base Rent and other monetary charges accruing under this Lease;
(3) 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 (1/12) of Tenant’s annual Taxes, Operating Expenses, and other obligations under this Lease; and
3. (4) The obligations imposed upon the trustee or the debtor-in-possession will continue for Tenant after the completion of bankruptcy proceedings.
(iv) Landlord has determined that the assumption of this Lease will not:
(1) Breach any provision in any other lease, mortgage, financing agreement, or other agreement by which Landlord is bound relating to the Property or Building Project in which the Premises is located; or
(2) Disrupt, in Landlord’s judgmentjudgement, the tenant mix of the Building or Project or any other attempt by Landlord to provide a specific variety of tenants in the Building Project which, in Landlord’s judgmentjudgement, would be most beneficial to all of the tenants thereof and would enhance the image, reputation, and profitability thereof.
(v) For purposes of this subparagraph (b), “adequate assurance” means that:
(1) Landlord determines that the trustee or the debtor-in-possession has, and will continue to have, sufficient unencumbered assets, after the payment of all secured obligations and administrative expenses, to assure Landlord that the trustee or the debtor-in-possession will have sufficient funds timely to fulfill Tenant’s obligations under this LeaseLease and to keep the Premises properly staffed with sufficient employees to conduct a fully operational, actively promoted business in the Premises; and
(2) An order shall have been entered segregating sufficient cash payable to Landlord and/or a valid and perfected first lien and security interest shall have been granted in property of Tenant, trustee, or debtor-in-in- possession which is acceptable in value and kind to Landlord, to secure to Landlord the obligation of the trustee or debtor-in-possession to cure all monetary and nonmonetary defaults under this Lease within the time periods set forth above.
(c) In the event this Lease is assumed by a trustee appointed for Tenant or by Tenant as debtor-in-possession under the provisions of subparagraph (b) above and, thereafter, Tenant is either adjudicated bankrupt or files a subsequent petition for arrangement under Chapter 11 of the Bankruptcy Code, then Landlord may, at its option, terminate this Lease and all the tenant’s rights under it, by giving written notice of Landlord’s election so to terminate.
(d) If the trustee or the debtor-in-possession has assumed this Lease, pursuant to subparagraph (a) or (b) above, to assign or to elect to assign Tenant’s interest under this Lease or the estate created by that interest to any other person, such interest or estate may be assigned only if the intended assignee has provided adequate assurance of future performance, as defined in this subparagraph (d), of all of the terms, covenants, and conditions of this Lease.
(i) For purposes of this subparagraph (d), “adequate assurance of future performance” means that Landlord has ascertained that each of the following conditions has been satisfied:
(1) The assignee has submitted a current financial statement, audited by a certified public accountant, which shows a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future performance by the assignee of the tenant’s obligations under this Lease;
(2) If requested by Landlord, the assignee will obtain guarantees, in form and substance satisfactory to Landlord (i.e. letter(s) of credit), from one or more persons who satisfy Landlord’s standards of creditworthiness; and
(3) Landlord has obtained consents or waivers from any third parties which may be required under any lease, mortgage, financing arrangement, or other agreement by which Landlord is bound, to enable Landlord to permit such assignment.
(e) When, pursuant to the Bankruptcy Code, the trustee or the debtor-in-possession is obligated to pay reasonable use and occupancy charges for the use of all or part of the Premises, it is agreed that such charges will not be less than the Base Rent as defined in this Lease, plus additional rent and other monetary obligations of Tenant included herein.
(f) Neither Tenant’s interest in this Lease nor any estate of Tenant created in this Lease shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, nor otherwise by operation of law under the laws of any state having jurisdiction of the person or property of Tenant, unless Landlord consents in writing to such transfer. Landlord’s acceptance of rent or any other payments from any trustee, receiver, assignee, person, or other entity will not be deemed to have waived, or waive, either the requirement of Landlord’s consent or Landlord’s right to terminate this Lease for any transfer of Tenant’s interest under this Lease without such consent.
Appears in 1 contract
Samples: Lease Agreement (Vital Images Inc)
Bankruptcy or Insolvency. It is understood and agreed that the following shall apply in the event of the bankruptcy or insolvency of Tenant:
(a) If a petition is filed by, or an order for relief is entered against against, Tenant under Chapter 7 of the Bankruptcy Code and the trustee of Tenant elects to assume this Lease for the purpose of assigning it, such election or assignment, 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 fails so to elect to assume this Lease within sixty (60) days after his appointment, this Lease will be deemed to have been rejected, and Landlord shall then immediately be entitled to possession of the Premises without further obligation to Tenant or the trustee and this Lease shall be terminated. Landlord’s right to be compensated for damages in the bankruptcy proceeding, however, shall survive such termination.
(b) If Tenant files a petition for reorganization under Chapters 11 or 13 of the Bankruptcy Code, or if a proceeding filed by or against Tenant under any other chapter of the Bankruptcy Code is converted to a Chapter 11 or 13 proceeding and Tenant’s trustee or Tenant as debtor-in-possession fails to assume this Lease within sixty (60) days from the date of the filing of such petition or conversion, then the trustee or the debtor-in-in- possession shall be deemed to have rejected this Lease. To be effective effective, any election to assume this Lease must be in writing addressed to Landlord and, in Landlord’s business judgment, all of the following conditions, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied:
(i) The trustee or the debtor-in-possession has cured or has provided to Landlord adequate assurance, as defined in this subparagraph (b), that the that
(1) The trustee will cure all monetary defaults under this Lease within ten (10) days from the date of assumption, and
(2) The trustee will cure all non-monetary defaults under this Lease within thirty (30) days from the date of assumption.
(ii) The trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with adequate assurance, as hereinafter defined, that that, within ten (10) days from the date of assumption assumption, Landlord will be compensated for any pecuniary loss it has incurred arising from the default of Tenant, the trustee, or the debtor-in-possession, as recited in Landlord’s written statement of pecuniary loss sent to the trustee or debtor-in-possession.
(iii) The trustee or the debtor-in-possession has provided Landlord with adequate assurance of the future performance of each of Tenant’s obligations under this Lease; provided, however, that:
(1. ) From and after the date of assumption of this Lease, the trustee or the debtor-in-in- possession shall pay Base Rent and Rent Adjustment payable under this Lease in advance in equal monthly installments on each date that such Rents rents are payable;
(2. ) The trustee or debtor-in-possession shall also deposit with Landlord, as security for the timely payment of Rentrent, an amount equal to three (3) months’ months Base Rent, Rent Adjustment and other monetary charges accruing under this Lease;
(3) 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 (1/12) of the Tenant’s annual Taxes, Operating Expenses, and other obligations under this Lease; and
3. (4) The obligations imposed upon the trustee or the debtor-in-possession will continue for Tenant after the completion of bankruptcy proceedings.
(iv) Landlord has determined that the assumption of this Lease will not:
(1) Breach any provision in any other lease, mortgage, financing agreement, or other agreement by which Landlord is bound relating to the Property or Building in which the Premises is located; , or
(2) Disrupt, in Landlord’s judgment, the tenant mix of the Building or any other attempt by Landlord to provide a specific variety of tenants in the Building which, in Landlord’s judgment, would be most beneficial to all of the tenants thereof and would enhance the image, reputation, reputation and profitability thereof.
(v) For purposes of this subparagraph (b), “adequate assurance” means that:
(1) Landlord determines that the trustee or the debtor-in-possession has, and will continue to have, sufficient unencumbered assets, after the payment of all secured obligations and administrative expenses, to assure Landlord that the trustee or the debtor-in-possession will have sufficient funds timely to fulfill Tenant’s obligations under this Lease; and
(2) An order shall have been entered segregating sufficient cash payable to Landlord and/or a valid and perfected first lien and security interest shall have been granted in property of Tenant, trustee, or debtor-in-possession which is acceptable in value and kind to Landlord, to secure to Landlord the obligation of the trustee or debtor-in-possession to cure all monetary and nonmonetary defaults under this Lease within the time periods set forth above.
(c) In the event this Lease is assumed by a trustee appointed for Tenant or by Tenant as debtor-in-possession under the provisions of subparagraph (b) above and, thereafter, Tenant is either adjudicated bankrupt or files a subsequent petition for arrangement under Chapter 11 of the Bankruptcy Code, then Landlord may, at its option, terminate this Lease and all the tenant’s rights under it, by giving written notice of Landlord’s election so to terminate.
(d) If the trustee or the debtor-in-possession has assumed this Lease, pursuant to subparagraph (a) or (b) above, to assign or to elect to assign Tenant’s interest under this Lease or the estate created by that interest to any other person, such interest or estate may be assigned only if the intended assignee has provided adequate assurance of future performance, as defined in this subparagraph (d), of all of the terms, covenants, and conditions of this Lease.
(i) For purposes of this subparagraph (d), “adequate assurance of future performance” means that Landlord has ascertained that each of the following conditions has been satisfied:
(1) The assignee has submitted a current financial statement, audited by a certified public accountant, which shows a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future performance by the assignee of the tenant’s obligations under this Lease;
(2) If requested by Landlord, the assignee will obtain guarantees, in form and substance satisfactory to Landlord (i.e. letter(s) of credit), from one or more persons who satisfy Landlord’s standards of creditworthiness; and
(3) Landlord has obtained consents or waivers from any third parties which may be required under any lease, mortgage, financing arrangement, or other agreement by which Landlord is bound, to enable Landlord to permit such assignment.
(e) When, pursuant to the Bankruptcy Code, the trustee or the debtor-in-possession is obligated to pay reasonable use and occupancy charges for the use of all or part of the Premises, it is agreed that such charges will not be less than the Rent as defined in this Lease.
(f) Neither Tenant’s interest in this Lease nor any estate of Tenant created in this Lease shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, nor otherwise by operation of law under the laws of any state having jurisdiction of the person or property of Tenant, unless Landlord consents in writing to such transfer. Landlord’s acceptance of rent or any other payments from any trustee, receiver, assignee, person, or other entity will not be deemed to have waived, or waive, either the requirement of Landlord’s consent or Landlord’s right to terminate this Lease for any transfer of Tenant’s interest under this Lease without such consent.
Appears in 1 contract
Samples: Office Lease (MBX Biosciences, Inc.)
Bankruptcy or Insolvency. It is understood and agreed that the following shall apply in the event of the bankruptcy or insolvency of Tenant:
(a) If a petition is filed by, or an order for relief is entered against against, Tenant under Chapter 7 of the Bankruptcy Code and the trustee of Tenant elects to assume this Lease for the purpose of assigning it, such election or assignment, 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 judgmentjudgement, all of the conditions hereinafter 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 sixty (60) days after his appointment, this Lease will be deemed to have been rejected, and Landlord shall then immediately be entitled to possession of the Premises without further obligation to Tenant or the trustee and this Lease shall be terminated. Landlord’s right to be compensated for damages in the bankruptcy proceeding, however, shall survive such termination.
(b) If Tenant files a petition for reorganization under Chapters 11 or 13 of the Bankruptcy Code, or if a proceeding filed by or against Tenant under any other chapter of the Bankruptcy Code is converted to a Chapter 11 or 13 proceeding and Tenant’s trustee or Tenant as debtor-in-possession fails to assume this Lease within sixty (60) days from the date of the filing of such petition or conversion, then the trustee or the debtor-in-possession shall be deemed to have rejected this Lease. To be effective effective, any election to assume this Lease must be in writing addressed to Landlord and, in Landlord’s business judgment, all of the following conditions, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied:
(i) The trustee or the debtor-in-possession has cured or has provided to Landlord adequate assurance, as defined in this subparagraph (b), that the that
(1) The trustee will cure all monetary defaults under this Lease within ten (10) days from the date of assumption, and
(2) The trustee will cure all non-monetary defaults under this Lease within thirty (30) days from the date of assumption.
(ii) The trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with adequate assurance, as hereinafter defined, that that, within ten (10) days from the date of assumption assumption, Landlord will be compensated for any pecuniary loss it has incurred arising from the default of Tenant, the trustee, or the debtor-in-possession, as recited in Landlord’s written statement of pecuniary loss sent to the trustee or debtor-in-possession.
(iii) The trustee or the debtor-in-possession has provided Landlord with adequate assurance of the future performance of each of Tenant’s obligations under this Lease; provided, however, that:
(1. ) From and after the date of assumption of this Lease, the trustee or the debtor-in-possession shall pay Base Rent and Rent Adjustment payable under this Lease in advance in equal monthly installments on each date that such Rents rents are payable;
(2. ) The trustee or debtor-in-possession shall also deposit with Landlord, as security for the timely payment of Rentrent, an amount equal to three (3) months’ months Base Rent, Rent Adjustment and other monetary charges accruing under this Lease;
(3) 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 (1/12) of the Tenant’s annual Taxes, Operating Expenses, and other obligations under this Lease; and
3. (4) The obligations imposed upon the trustee or the debtor-in-possession will continue for Tenant after the completion of bankruptcy proceedings.
(iv) Landlord has determined that the assumption of this Lease will not:
(1) Breach any provision in any other lease, mortgage, financing agreement, or other agreement by which Landlord is bound relating to the Property or Building in which the Premises is located; , or
(2) Disrupt, in Landlord’s judgment, the tenant mix of the Building or any other attempt by Landlord to provide a specific variety of tenants in the Building which, in Landlord’s judgment, would be most beneficial to all of the tenants thereof and would enhance the image, reputation, reputation and profitability thereof.
(v) For purposes of this subparagraph (b), “adequate assurance” means that:
(1) Landlord determines that the trustee or the debtor-in-possession has, and will continue to have, sufficient unencumbered assets, assets after the payment of all secured obligations and administrative expenses, expenses to assure Landlord that the trustee or the debtor-in-possession will have sufficient funds timely to fulfill Tenant’s obligations under this LeaseLease and to keep the Premises properly staffed with sufficient employees to conduct a fully-operational, actively-promoted business in the Premises; and
(2) An order shall have been entered segregating sufficient cash payable to Landlord and/or a valid and perfected first lien and security interest shall have been granted in property of Tenant, trustee, or debtor-in-possession which is acceptable in value and kind to Landlord, to secure to Landlord the obligation of the trustee or debtor-in-possession to cure all monetary and nonmonetary non-monetary defaults under this Lease within the time periods set forth above.
(c) In the event this Lease is assumed by a trustee appointed for Tenant or by Tenant as debtor-in-possession under the provisions of subparagraph (b) above above, and, thereafter, Tenant is either adjudicated bankrupt or files a subsequent petition for arrangement under Chapter 11 of the Bankruptcy Code, then Landlord may, at its option, terminate this Lease and all the tenantTenant’s rights under it, by giving written notice of Landlord’s election to so to terminate.
(d) If the trustee or the debtor-in-possession has assumed this Lease, Lease pursuant to subparagraph (a) or (b) above, to assign or to elect to assign Tenant’s interest under this Lease or the estate created by that interest to any other person, such interest or estate may be assigned only if the intended assignee has provided adequate assurance of future performance, as defined in this subparagraph (d), of all of the terms, covenants, and conditions of this Lease.
(i) For purposes of this subparagraph (d), “adequate assurance of future performance” means that Landlord has ascertained that each of the following conditions has been satisfied:
(1) The assignee has submitted a current financial statement, audited by a certified public accountant, which shows a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future performance by the assignee of the tenant’s obligations under this Lease;
(2) If requested by Landlord, the assignee will obtain guarantees, in form and substance satisfactory to Landlord (i.e. letter(s) of credit), from one or more persons who satisfy Landlord’s standards of creditworthiness; and
(3) Landlord has obtained consents or waivers from any third parties which may be required under any lease, mortgage, financing arrangement, or other agreement by which Landlord is bound, to enable Landlord to permit such assignment.
(e) When, pursuant to the Bankruptcy Code, the trustee or the debtor-in-possession is obligated to pay reasonable use and occupancy charges for the use of all or part of the Premises, it is agreed that such charges will not be less than the Rent as defined in this Lease.
(f) Neither Tenant’s interest in this Lease nor any estate of Tenant created in this Lease shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, nor otherwise by operation of law under the laws of any state having jurisdiction of the person or property of Tenant, unless Landlord consents in writing to such transfer. Landlord’s acceptance of rent or any other payments from any trustee, receiver, assignee, person, or other entity will not be deemed to have waived, or waive, either the requirement of Landlord’s consent or Landlord’s right to terminate this Lease for any transfer of Tenant’s interest under this Lease without such consent.
Appears in 1 contract
Samples: Office Lease (Endocyte Inc)
Bankruptcy or Insolvency. It is understood and agreed that If the following shall apply in the event of the bankruptcy or insolvency of Tenant:
(a) If Tenant becomes a petition is filed by, or an order for relief is entered against Tenant debtor under Chapter 7 of ------------------------ the United States Bankruptcy Code and the trustee of Tenant elects to assume this Lease for the purpose of assigning it, such election or assignmentCode, 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 fails so to elect to assume this Lease within sixty (60) days after his appointment, this Lease will be deemed to have been rejected, and Landlord shall then immediately be entitled to possession of the Premises without further obligation to Tenant or the trustee and this Lease shall be terminated. Landlord’s right to be compensated for damages in the bankruptcy proceeding, however, shall survive such termination.
(b) If Tenant files event that a petition for reorganization or adjustment of debts is filed concerning the Tenant under Chapters Chapter 11 or Chapter 13 of the Bankruptcy Code, or if a proceeding filed by or against Tenant under any other chapter of the Bankruptcy Code Chapter 7 is converted transferred to a Chapter 11 or 13 proceeding and 13, the Trustee or the Tenant’s trustee or Tenant , as debtorDebtor-in-possession fails to assume this Lease within sixty (60) days from the date of the filing of such petition or conversionPossession, then the trustee or the debtor-in-possession shall be deemed to have rejected this Lease. To be effective any No election by the Trustee or Debtor-in-Possession to assume this Lease must shall be in writing addressed to Landlord and, in Landlord’s business judgment, all effective unless each of the following conditions, which Landlord and Tenant hereby acknowledge to be commercially reasonablereasonable in the context of a bankruptcy proceeding, must have has been satisfied, and the Landlord has so acknowledged in writing:
(ia) The trustee Trustee or the debtorDebtor-in-possession Possession has cured 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.
(b) The Trustee or Debtor-in-Possession has compensated, or has provided to the Landlord adequate assurance, as defined in this subparagraph (b), that the trustee will cure all monetary defaults under this Lease within ten (10) days from the date of assumption.
(ii) The trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with adequate assurance, as hereinafter defined, assurance that within ten (10) days from of the date of assumption assumption, the Landlord will be compensated compensated, for any pecuniary loss it has incurred by the Landlord arising from the default of the Tenant, the trustee, Trustee or the debtorDebtor-in-possession, Possession as recited in the Landlord’s 's written statement of pecuniary loss sent to the trustee Trustee or debtorDebtor-in-possessionPossession.
(iiic) The trustee Trustee or the debtorDebtor-in-possession Possession has provided the Landlord with adequate assurance of the future performance of each of the Tenant’s 's, the Trustee's, or Debtor-in-Possession's obligations under this Lease; provided, however, that:
(1. From and after the date of assumption of this Lease, the trustee ) The Trustee or the debtorDebtor-in-possession shall pay Rent payable under this Lease in advance in equal monthly installments on each date that such Rents are payable;
2. The trustee or debtor-in-possession Possession shall also deposit with the Landlord, as security for the timely payment of Rentrent and other sums due hereunder, an amount equal to three (3) months’ months Base Rent, Additional Rent and other monetary charges accruing under this Lease; and
3. (2) The obligations imposed upon the trustee Trustee or the debtorDebtor-in-possession will Possession shall continue for with respect to the Tenant or any assignee of this Lease after the completion of the bankruptcy proceedings.
(ivd) Landlord has determined that the assumption For purposes of this Lease will notParagraph, Landlord and Tenant acknowledge that, in the context of the bankruptcy proceeding of the Tenant, at a minimum, "adequate assurance" shall mean:
(1) Breach any provision in any other lease, mortgage, financing agreement, The Trustee or other agreement by which Landlord is bound relating to the Property or Building in which the Premises is located; or
(2) Disrupt, in Landlord’s judgment, the tenant mix of the Building or any other attempt by Landlord to provide a specific variety of tenants in the Building which, in Landlord’s judgment, would be most beneficial to all of the tenants thereof and would enhance the image, reputation, and profitability thereof.
(v) For purposes of this subparagraph (b), “adequate assurance” means that:
(1) Landlord determines that the trustee or the debtorDebtor-in-possession has, and Possession will continue to have, have sufficient unencumbered assets, assets after the payment of all secured obligations and administrative expenses, expenses to assure the Landlord that the trustee Trustee or the debtorDebtor-in-possession Possession will have sufficient funds timely to fulfill Tenant’s all of the obligations of Tenant under this Lease; andor
(2) An order The Bankruptcy Court shall have been entered an order segregating sufficient cash payable to the Landlord, and the Trustee or Debtor-in-Possession shall have granted to the Landlord and/or a valid and perfected first lien and security interest shall have been granted or mortgage in property of the Tenant, trustee, the Trustee or debtorDebtor-in-possession which is Possession, acceptable in as to value and kind to the Landlord, in order to secure to the Landlord the obligation of the trustee Tenant, Trustee or debtorDebtor-in-possession Possession to cure all the monetary and nonmonetary or non-monetary defaults under this the Lease within the time periods period set forth above.
(ce) In the event The following conditions shall apply to any assignment of this Lease is assumed by a trustee appointed for Tenant in Bankruptcy Proceedings:
(1) If the Trustee or by Tenant as debtorDebtor-in-possession under the provisions of subparagraph (b) above and, thereafter, Tenant is either adjudicated bankrupt or files a subsequent petition for arrangement under Chapter 11 of the Bankruptcy Code, then Landlord may, at its option, terminate Possession has assumed this Lease and all the tenant’s rights under it, by giving written notice of Landlord’s election so to terminate.
(d) If the trustee or the debtor-in-possession has assumed this Lease, pursuant to subparagraph (a) or (b) above, elects to assign or to elect to assign Tenant’s interest under this the Lease or the estate created by that interest to any other person, such interest or estate of Tenant in this Lease may be so assigned only if the Landlord has acknowledged in writing that the intended assignee has provided can provide to the Landlord "adequate assurance of future performance, " (as defined in this subparagraph (d), herein-after defined) of all of the terms, covenants, covenants and conditions of this LeaseLease to be performed by the Tenant.
(i2) For the purposes of this subparagraph (d)provision, “Landlord and Tenant acknowledge that, in the context of a bankruptcy proceeding, at a minimum, "adequate assurance of future performance” means that Landlord has ascertained " shall mean that each of the following conditions has been satisfied, and the Landlord has so acknowledged in writing:
(1) A. The proposed assignee has submitted a current financial statement, statement audited by a certified public accountant, Certified Public Accountant which shows a the net worth and working capital in and amounts determined by Landlord to be sufficient to assure the future performance by the such assignee of the tenant’s all of Tenant's obligations under this Lease;
(2) If B. The proposed, assignee, if requested by the Landlord, the assignee will obtain guarantees, shall have obtained guarantees in form and substance satisfactory to the Landlord (i.e. letter(s) of credit), from one or more persons who satisfy the Landlord’s 's standards of creditworthiness; and;
(3) C. The Landlord has obtained all consents or waivers from any third parties which may be party required under any lease, mortgage, financing arrangement, or other agreement by which the Landlord is bound, in order to enable permit the Landlord to permit consent to such assignment.
(e) When, pursuant to the Bankruptcy Code, the trustee or the debtor-in-possession is obligated to pay reasonable use and occupancy charges for the use of all or part of the Premises, it is agreed that such charges will not be less than the Rent as defined in this Lease.
(f) Neither Tenant’s interest in this Lease nor any estate of Tenant created in this Lease shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, nor otherwise by operation of law under the laws of any state having jurisdiction of the person or property of Tenant, unless Landlord consents in writing to such transfer. Landlord’s acceptance of rent or any other payments from any trustee, receiver, assignee, person, or other entity will not be deemed to have waived, or waive, either the requirement of Landlord’s consent or Landlord’s right to terminate this Lease for any transfer of Tenant’s interest under this Lease without such consent.
Appears in 1 contract
Samples: Office Building Lease (Colorado Business Bankshares Inc)
Bankruptcy or Insolvency. It is understood and agreed that the following shall apply in the event of the bankruptcy or insolvency of Tenant:
(a) If a petition is filed by, or an order for relief is entered against Tenant under Chapter 7 of the Bankruptcy Code and the trustee of Tenant elects to assume this Lease for the purpose of assigning it, such election or assignment, 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 '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 fails so to elect to assume this Lease within sixty (60) days after his appointment, this Lease will be deemed to have been rejected, and Landlord shall then immediately be entitled to possession of the Premises without further obligation to Tenant or the trustee and this Lease shall be terminated. Landlord’s 's right to be compensated for damages in the bankruptcy proceeding, however, shall survive such termination.
(b) If Tenant files a petition for reorganization under Chapters 11 or 13 of the Bankruptcy Code, or if a proceeding filed by or against Tenant under any other chapter of the Bankruptcy Code is converted to a Chapter 11 or 13 proceeding and Tenant’s 's trustee or Tenant as debtor-in-possession fails to assume this Lease within sixty (60) days from the date of the filing of such petition or conversion, then the trustee or the debtor-in-possession shall be deemed to have rejected this Lease. To be effective any election to assume this Lease must be in writing addressed to Landlord and, in Landlord’s 's business judgment, all of the following conditions, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied:
(i) The trustee or the debtor-in-possession has cured or has provided to Landlord adequate assurance, as defined in this subparagraph (b), that the that:
(1) The trustee will cure all monetary defaults under this Lease 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.
(ii) The trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with adequate assurance, as hereinafter defined, that within ten (10) days from the date of assumption Landlord will be compensated for any pecuniary loss it has incurred arising from the default of Tenant, the trustee, or the debtor-in-possession, as recited in Landlord’s written statement of pecuniary loss sent to the trustee or debtor-in-possession.
(iii) The trustee or the debtor-in-possession has provided Landlord with adequate assurance of the future performance of each of Tenant’s obligations under this Lease; provided, however, that:
1. From and after the date of assumption of this Lease, the trustee or the debtor-in-possession shall pay Rent payable under this Lease in advance in equal monthly installments on each date that such Rents are payable;
2. The trustee or debtor-in-possession shall also deposit with Landlord, as security for the timely payment of Rent, an amount equal to three (3) months’ Rent and other monetary charges accruing under this Lease; and
3. The obligations imposed upon the trustee or the debtor-in-possession will continue for Tenant after the completion of bankruptcy proceedings.
(iv) Landlord has determined that the assumption of this Lease will not:
(1) Breach any provision in any other lease, mortgage, financing agreement, or other agreement by which Landlord is bound relating to the Property or Building in which the Premises is located; or
(2) Disrupt, in Landlord’s judgment, the tenant mix of the Building or any other attempt by Landlord to provide a specific variety of tenants in the Building which, in Landlord’s judgment, would be most beneficial to all of the tenants thereof and would enhance the image, reputation, and profitability thereof.
(v) For purposes of this subparagraph (b), “adequate assurance” means that:
(1) Landlord determines that the trustee or the debtor-in-possession has, and will continue to have, sufficient unencumbered assets, after the payment of all secured obligations and administrative expenses, to assure Landlord that the trustee or the debtor-in-possession will have sufficient funds timely to fulfill Tenant’s obligations under this Lease; and
(2) An order shall have been entered segregating sufficient cash payable to Landlord and/or a valid and perfected first lien and security interest shall have been granted in property of Tenant, trustee, or debtor-in-possession which is acceptable in value and kind to Landlord, to secure to Landlord the obligation of the trustee or debtor-in-possession to cure all monetary and nonmonetary defaults under this Lease within the time periods set forth above.
(c) In the event this Lease is assumed by a trustee appointed for Tenant or by Tenant as debtor-in-possession under the provisions of subparagraph (b) above and, thereafter, Tenant is either adjudicated bankrupt or files a subsequent petition for arrangement under Chapter 11 of the Bankruptcy Code, then Landlord may, at its option, terminate this Lease and all the tenant’s rights under it, by giving written notice of Landlord’s election so to terminate.
(d) If the trustee or the debtor-in-possession has assumed this Lease, pursuant to subparagraph (a) or (b) above, to assign or to elect to assign Tenant’s interest under this Lease or the estate created by that interest to any other person, such interest or estate may be assigned only if the intended assignee has provided adequate assurance of future performance, as defined in this subparagraph (d), of all of the terms, covenants, and conditions of this Lease.
(i) For purposes of this subparagraph (d), “adequate assurance of future performance” means that Landlord has ascertained that each of the following conditions has been satisfied:
(1) The assignee has submitted a current financial statement, audited by a certified public accountant, which shows a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future performance by the assignee of the tenant’s obligations under this Lease;
(2) If requested by Landlord, the assignee will obtain guarantees, in form and substance satisfactory to Landlord (i.e. letter(s) of credit), from one or more persons who satisfy Landlord’s standards of creditworthiness; and
(3) Landlord has obtained consents or waivers from any third parties which may be required under any lease, mortgage, financing arrangement, or other agreement by which Landlord is bound, to enable Landlord to permit such assignment.
(e) When, pursuant to the Bankruptcy Code, the trustee or the debtor-in-possession is obligated to pay reasonable use and occupancy charges for the use of all or part of the Premises, it is agreed that such charges will not be less than the Rent as defined in this Lease.
(f) Neither Tenant’s interest in this Lease nor any estate of Tenant created in this Lease shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, nor otherwise by operation of law under the laws of any state having jurisdiction of the person or property of Tenant, unless Landlord consents in writing to such transfer. Landlord’s acceptance of rent or any other payments from any trustee, receiver, assignee, person, or other entity will not be deemed to have waived, or waive, either the requirement of Landlord’s consent or Landlord’s right to terminate this Lease for any transfer of Tenant’s interest under this Lease without such consent.any
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Bankruptcy or Insolvency. It is understood Landlord and agreed Tenant agree that the following shall apply in the event of the bankruptcy or insolvency of Tenant:
(a) If a petition is filed by, or an order for relief is entered against Tenant under Chapter 7 of the Bankruptcy Code and the trustee of Tenant elects to assume this Lease for the purpose of assigning it, such election or assignment, or both, assumption and assignment may be made only if all of the terms and conditions of subparagraphs Subsections (b) and (d) below are satisfied. To be effective, an election to assume this Lease must be in writing and writing, addressed to Landlord, and in Landlord’s business judgment, Version 10 all of the conditions hereinafter 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 sixty (60) days after his appointmentsuch filing or order or such additional time as the Bankruptcy Court, for cause, may fix, this Lease will be deemed to have been rejected, and Landlord shall then immediately be entitled to possession of the Premises Master Lease Property without further obligation to Tenant or the trustee trustee, and this Lease shall be terminated. Landlord’s 's right to be compensated for damages in the bankruptcy proceeding, however, shall survive such termination.
(b) If Tenant files a petition for reorganization under Chapters 11 or 13 of the Bankruptcy Code, or if a proceeding pro ceeding filed by or against Tenant under any other chapter of the Bankruptcy Code is converted to a Chapter chapter 11 or 13 proceeding and Tenant’s 's trustee or Tenant as debtor-in-possession fails to assume this Lease within sixty (60) 60 days from the date of the filing of such petition or conversionconversion or such additional time as the Bankruptcy Court, for cause, may fix, then the trustee or the debtor-in-possession shall be deemed to have rejected this Lease. To be effective effective, any election to assume this Lease must be in writing writing, addressed to Landlord and, in Landlord’s business judgmentif 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, as defined in this subparagraph assurance that:
(b), that the trustee A) It will cure all monetary defaults under this Lease within ten the number of days specified in Section 21(a)(I) of this Lease from the date of assumption; and
(10B) 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, as hereinafter defined, assurance that within ten (10) days from the date of assumption 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, 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 's obligations under this Lease; provided, however, that:
1. (A) From and after the date of assumption of this Lease, until the trustee or date of the debtor-in-possession assignment of this Lease, it shall pay all monetary obligations, including, without limitation, the Rent payable under this Lease Lease, in advance in equal monthly installments on each date that such Rents amounts are payable;.
2. The trustee or debtor-in-possession (B) It shall also deposit with Landlord, as security for the timely payment of Rent, an amount equal to three (3) months’ ' Base Rent and other monetary charges accruing under this Lease; and
3. The obligations imposed upon the trustee or the debtor-in-possession will continue for Tenant after the completion of bankruptcy proceedings.;
(ivC) Landlord has determined that If not otherwise required by the assumption terms of this Lease will not:
Lease, it shall also pay in advance, on each day that any installment of Base Rent is payable, one-twelfth (11/12) Breach any provision in any of Tenant's Imposition, Insurance and other lease, mortgage, financing agreement, or other agreement by which Landlord is bound relating to the Property or Building in which the Premises is located; or
(2) Disrupt, in Landlord’s judgment, the tenant mix of the Building or any other attempt by Landlord to provide a specific variety of tenants in the Building which, in Landlord’s judgment, would be most beneficial to all of the tenants thereof and would enhance the image, reputation, and profitability thereof.
(v) For purposes of this subparagraph (b), “adequate assurance” means that:
(1) Landlord determines that the trustee or the debtor-in-possession has, and will continue to have, sufficient unencumbered assets, after the payment of all secured obligations and administrative expenses, to assure Landlord that the trustee or the debtor-in-possession will have sufficient funds timely to fulfill Tenant’s obligations under this Lease; and
(2) An order shall have been entered segregating sufficient cash payable to Landlord and/or a valid and perfected first lien and security interest shall have been granted in property of Tenant, trustee, or debtor-in-possession which is acceptable in value and kind to Landlord, to secure to Landlord the obligation of the trustee or debtor-in-possession to cure all monetary and nonmonetary defaults under this Lease within the time periods set forth above.
(c) In the event this Lease is assumed by a trustee appointed for Tenant or by Tenant as debtor-in-possession under the provisions of subparagraph (b) above and, thereafter, Tenant is either adjudicated bankrupt or files a subsequent petition for arrangement under Chapter 11 of the Bankruptcy Code, then Landlord may, at its option, terminate this Lease and all the tenant’s rights under it, by giving written notice of Landlord’s election so to terminate.
(d) If the trustee or the debtor-in-possession has assumed this Lease, pursuant to subparagraph Subsection (a) or (b) above, to assign or to elect and elects to assign Tenant’s 's interest under this Lease or the estate created by that interest to any other person, such interest or estate may be assigned only if the intended assignee has provided adequate assurance of future performance, as defined in this subparagraph (d), performance of all of the terms, covenants, and conditions of this Lease.
(i) . For the purposes of this subparagraph Subsection (d), “"adequate assurance of future performance” " means that Landlord has ascertained that each of the following conditions condition has been satisfied:
(1) : The assignee has submitted a current financial statement, audited by a certified public accountant, statement which shows a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future performance by the assignee of the tenant’s obligations Tenant's obliga tions under this Lease;
(2) If requested by Landlord, the assignee will obtain guarantees, in form and substance satisfactory to Landlord (i.e. letter(s) of credit), from one or more persons who satisfy Landlord’s standards of creditworthiness; and
(3) Landlord has obtained consents or waivers from any third parties which may be required under any lease, mortgage, financing arrangement, or other agreement by which Landlord is bound, to enable Landlord to permit such assignment.
(ed) 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 will not be less than the Base Rent as defined in this Lease, plus Additional Rent and other monetary obligations of Tenant included herein.
(fe) Neither Except to the extent provided by law, neither Tenant’s 's interest in this Lease nor any estate of Tenant created in this Lease shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, nor otherwise by operation of law under the laws of any state having jurisdiction of the person or property of Tenant, unless Landlord consents in writing to such transfer. Landlord’s 's acceptance of rent Rent or any other payments from any trustee, receiver, Version 10 assignee, person, or other entity will not be deemed to have waived, or waive, either the requirement of Landlord’s 's consent or Landlord’s 's right to terminate this Lease for any transfer of Tenant’s interest 's inter est under this Lease without such consent.
Appears in 1 contract
Samples: Master Lease Agreement (Comsat Corp)
Bankruptcy or Insolvency. It is understood Landlord and agreed Tenant agree that the following shall apply in the event of the bankruptcy or insolvency of Tenant:
(a) If a petition is filed by, or an order for relief is entered against Tenant under Chapter 7 of the Bankruptcy Code and the trustee of Tenant elects to assume this Lease for the purpose of assigning it, such election or assignment, or both, assumption and assignment may be made only if all of the terms and conditions of subparagraphs Subsections (b) and (d) below are satisfied. To be effective, an election to assume this Lease must be in writing and writing, addressed to Landlord, and in Landlord’s business judgment, all of the conditions hereinafter 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 sixty (60) 60 days after his appointmentsuch filing or order or such additional time as the Bankruptcy Court, for cause, may fix, this Lease will be deemed to have been rejected, and Landlord shall then immediately be entitled to possession of the Installations Premises without further obligation to Tenant or the trustee trustee, and this Lease shall be terminated. Landlord’s 's right to be compensated for damages in the bankruptcy proceeding, however, shall survive such termination.
(b) If Tenant files a petition for reorganization under Chapters 11 or 13 of the Bankruptcy Code, or if a proceeding filed by or against Tenant under any other chapter of the Bankruptcy Code is converted to a Chapter chapter 11 or 13 proceeding and Tenant’s 's trustee or Tenant as debtor-in-possession fails to assume this Lease within sixty (60) 60 days from the date of the filing of such petition or conversionconversion or such additional time as the Bankruptcy Court, for cause, may fix, then the trustee or the debtor-in-possession shall be deemed to have rejected this Lease. To be effective effective, any election to assume this Lease must be in writing writing, addressed to Landlord and, in Landlord’s business judgmentif 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, as defined in this subparagraph assurance that:
(b), that the trustee A) It will cure all monetary defaults under this Lease within ten the number of days specified in Section 21(a)(I) of this Lease from the date of assumption; and
(10B) 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, as hereinafter defined, assurance that within ten (10) days from the date of assumption 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, as recited in Landlord’s written statement of pecuniary loss sent to the trustee or debtor-in-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 's obligations under this Lease; provided, however, that:
1. (A) From and after the date of assumption of this Lease, until the trustee or date of the debtor-in-possession assignment of this Lease, it shall pay all monetary obligations, including, without limitation, the Rent payable under this Lease Lease, in advance in equal monthly installments on each date that such Rents amounts are payable;.
2. The trustee or debtor-in-possession (B) It shall also deposit with Landlord, as security for the timely payment of Rent, an amount equal to three (3) months’ ' Base Rent and other monetary charges accruing under this Lease; and
3. The obligations imposed upon the trustee or the debtor-in-possession will continue for Tenant after the completion of bankruptcy proceedings.;
(ivC) Landlord has determined that If not otherwise required by the assumption terms of this Lease will not:
(1) Breach Lease, it shall also pay in advance, on each day that any provision in any installment of Base Rent is payable, one- twelfth of Tenant's Imposition, Insurance and other lease, mortgage, financing agreement, or other agreement by which Landlord is bound relating to the Property or Building in which the Premises is located; or
(2) Disrupt, in Landlord’s judgment, the tenant mix of the Building or any other attempt by Landlord to provide a specific variety of tenants in the Building which, in Landlord’s judgment, would be most beneficial to all of the tenants thereof and would enhance the image, reputation, and profitability thereof.
(v) For purposes of this subparagraph (b), “adequate assurance” means that:
(1) Landlord determines that the trustee or the debtor-in-possession has, and will continue to have, sufficient unencumbered assets, after the payment of all secured obligations and administrative expenses, to assure Landlord that the trustee or the debtor-in-possession will have sufficient funds timely to fulfill Tenant’s obligations under this Lease; and
(2) An order shall have been entered segregating sufficient cash payable to Landlord and/or a valid and perfected first lien and security interest shall have been granted in property of Tenant, trustee, or debtor-in-possession which is acceptable in value and kind to Landlord, to secure to Landlord the obligation of the trustee or debtor-in-possession to cure all monetary and nonmonetary defaults under this Lease within the time periods set forth above.
(c) In the event this Lease is assumed by a trustee appointed for Tenant or by Tenant as debtor-in-possession under the provisions of subparagraph (b) above and, thereafter, Tenant is either adjudicated bankrupt or files a subsequent petition for arrangement under Chapter 11 of the Bankruptcy Code, then Landlord may, at its option, terminate this Lease and all the tenant’s rights under it, by giving written notice of Landlord’s election so to terminate.
(d) If the trustee or the debtor-in-possession has assumed this Lease, pursuant to subparagraph Subsection (a) or (b) above, to assign or to elect and elects to assign Tenant’s 's interest under this Lease or the estate created by that interest to any other person, such interest or estate may be assigned only if the intended assignee has provided adequate assurance of future performance, as defined in this subparagraph (d), performance of all of the terms, covenants, and conditions of this Lease.
(i) . For the purposes of this subparagraph Subsection (d), “"adequate assurance of future performance” " means that Landlord has ascertained that each of the following conditions condition has been satisfied:
(1) : The assignee has submitted a current financial statement, audited by a certified public accountant, statement which shows a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future performance by the assignee of the tenant’s Tenant's obligations under this Lease;
(2) If requested by Landlord, the assignee will obtain guarantees, in form and substance satisfactory to Landlord (i.e. letter(s) of credit), from one or more persons who satisfy Landlord’s standards of creditworthiness; and
(3) Landlord has obtained consents or waivers from any third parties which may be required under any lease, mortgage, financing arrangement, or other agreement by which Landlord is bound, to enable Landlord to permit such assignment.
(ed) 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 Installations Premises, it is agreed that such charges will not be less than the Base Rent as defined in this Lease, plus Additional Rent and other monetary obligations of Tenant included herein.
(fe) Neither Except to the extent provided by law, neither Tenant’s 's interest in this Lease nor any estate of Tenant created in this Lease shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, nor otherwise by operation of law under the laws of any state having jurisdiction of the person or property of Tenant, unless Landlord consents in writing to such transfer. Landlord’s 's acceptance of rent Rent or any other payments from any trustee, receiver, assignee, person, or other entity will not be deemed to have waived, or waive, either the requirement of Landlord’s 's consent or Landlord’s 's right to terminate this Lease for any transfer of Tenant’s 's interest under this Lease without such consent.
Appears in 1 contract
Bankruptcy or Insolvency. It is understood and agreed that the following shall apply in the event of the Ore bankruptcy or insolvency of Tenant:
(a) If a petition is filed by, or an order for relief is entered against Tenant under Chapter 7 of the Bankruptcy Code and the trustee of Tenant elects to assume this Lease for the purpose of assigning it, such election or on assignment, 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 's business judgmentjudgement, all of the conditions hereinafter 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 sixty (60) days after his appointment, this Lease will be deemed to have been rejected, and Landlord shall then immediately be entitled to possession of the Premises without further obligation to Tenant or the trustee and this Lease shall be terminated. , Landlord’s 's right to be compensated for damages in the bankruptcy proceeding, however, shall survive such termination.
(b) If Tenant files a petition for reorganization under Chapters 11 or 13 of the Bankruptcy Code, or if a proceeding filed by or against Tenant under any other chapter of the Bankruptcy Code is converted to a Chapter 11 or 13 proceeding and Tenant’s 's trustee or Tenant as debtor-in-possession fails to assume this Lease within sixty (60) days from the date of the this filing of such petition or conversion, then the trustee or the debtor-in-possession shall be deemed to have rejected this Lease. To be effective any election to assume this Lease must be in writing addressed to Landlord and, in Landlord’s 's business judgmentjudgement, all of the following conditions, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied:
(i) The trustee or on the debtor-in-possession has cured or has provided to Landlord adequate assurance, as defined in iii this subparagraph (b), that the that;
(1) The trustee will cure all monetary defaults under this Lease within ten (10) days from the date of assumption; and
(2) The trustee will cure all non-monetary defaults under this Lease within thirty (30) days from the date of assumption.
(ii) The trustee or on 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 '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 's obligations under this Lease; provided, however, that:
(1. ) From and after the date of assumption of this Lease, the trustee or on the debtor-in-possession shall pay the Base Rent and Additional Rents payable under this Lease in advance in equal monthly installments on each date that such Rents are payable;.
(2. ) The trustee or debtor-in-possession shall also deposit with Landlord, as security for the timely payment of Rent, an amount equal to three (3) months’ Rent ' Base Remit and other monetary charges accruing under this Lease;
(3) If not otherwise required by the term of this Lease, this trustee on the debtor-in-possession shall also pay in advance, on each day that any installment of Base Rent is payable, one-twelfth (1/12) of Tenant's annual Taxes, Operating Expenses, and other obligations under this lease; and
3. (4) The obligations imposed upon the trustee or the debtor-in-possession will continue for Tenant after the completion of bankruptcy proceedings.
(iv) Landlord has determined that the assumption of this Lease will not:;
(1) Breach any provision in any other lease, mortgage, financing agreement, or on other agreement by which Landlord is bound relating to the Property Property, or Building in which the Premises is located; or
(2) Disrupt, in Landlord’s judgment's judgement, the tenant mix of the Building or any other attempt by Landlord to provide a specific variety of tenants in the Building which, in Landlord’s judgmentLandlords judgement, would be most beneficial to all of the tenants thereof and would enhance the image, reputation, and profitability thereof.
(v) For purposes of this subparagraph (b), “"adequate assurance” " means that:;
(1) Landlord determines that the trustee or on 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 on the debtor-in-possession will have sufficient funds timely to fulfill Tenant’s 's obligations under this LeaseLease and to keep the Premises properly staffed with sufficient employees to conduct a fully operations, actively promoted business in the Premises; and
(2) An order shall have been entered segregating sufficient cash payable to Landlord and/or a valid and perfected first lien and security interest shall have been granted in property of Tenant, trustee, or debtor-in-possession which is acceptable in In value and kind to Landlord, to secure to Landlord the obligation of the trustee or debtor-in-possession to cure all monetary and nonmonetary non-monetary defaults under this Lease within the time periods set forth above.
(c) In the event this Lease is assumed by a trustee appointed for Tenant or by Tenant as debtor-in-possession under the provisions of subparagraph (b) above and, thereafter, Tenant is either adjudicated bankrupt or files flies a subsequent petition for arrangement under Chapter 11 of the Bankruptcy Code, then Landlord may, at its option, terminate this Lease and all the tenant’s 's rights under it, by giving written notice of Landlord’s 's election so to terminate.
(d) If the trustee or the debtor-in-possession has assumed this Lease, pursuant to subparagraph (a) or (b) above, above to assign or to elect to assign Tenant’s 's interest under this Lease or the estate created by that interest to any other person, such interest or estate may be assigned only if the intended assignee has provided adequate assurance of future performance, as defined in In this subparagraph (d), ) of all of the terms, terms covenants, and conditions of this Lease.
(i) For purposes of this subparagraph (d), “"adequate assurance of future performance” " means that Landlord has ascertained that each of the following conditions has been satisfied:
(1) The assignee has submitted a current financial statement, audited by a certified public accountant, which shows a net worth and working capital in In amounts determined by Landlord to be sufficient to assure the future performance by the assignee of the tenant’s 's obligations under this Lease;
(2) If requested by Landlord, the assignee will obtain guarantees, in form and substance satisfactory to Landlord (i.e. letter(s) of credit), from one or more persons who satisfy Landlord’s 's standards of creditworthiness; and
(3) Landlord has obtained consents or waivers from any third parties which may be required under any lease, mortgage, financing arrangement, or other agreement by which Landlord is bound, to enable Landlord to permit such assignment.
(e) When, pursuant to the Bankruptcy Code, the trustee or the debtor-in-possession is obligated to pay reasonable use and occupancy charges for the use of all or part of the Premises, it is Is agreed that such charges will not be he less than the Base Rent as defined in this Lease, plus additional rent and other monetary obligations of Tenant included herein.
(f) Neither Tenant’s 's interest in this Lease nor any estate of Tenant created in this Lease shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, nor otherwise by operation of law under the laws of any state having jurisdiction of the person or property of Tenant, unless Landlord consents Consents in writing to such transfer. Landlord’s 's acceptance of rent or any other payments from any trustee, receiver, assignee, person, or other entity will not be deemed to have waived, or waive, either the requirement of Landlord’s 's consent or Landlord’s 's right to terminate this Lease for any transfer of Tenant’s 's interest under this Lease without such consent.
Appears in 1 contract
Samples: Lease (Early Detect)
Bankruptcy or Insolvency. It is understood and agreed that the following shall apply in the event of the bankruptcy or insolvency of Tenant:
(a) If a petition is filed by, or an order for relief is entered against against, Tenant under Chapter 7 of the Bankruptcy Code and the trustee of Tenant elects to assume this Lease for the purpose of assigning it, such election or assignment, 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 fails so to elect to assume this Lease within sixty (60) days after his appointment, this Lease will be deemed to have been rejected, and Landlord shall then immediately be entitled to possession of the Premises without further obligation to Tenant or the trustee and this Lease shall be terminated. Landlord’s right to be compensated for damages in the bankruptcy proceeding, however, shall survive such termination.
(b) If Tenant files a petition for reorganization under Chapters 11 or 13 of the Bankruptcy Code, or if a proceeding filed by or against Tenant under any other chapter of the Bankruptcy Code is converted to a Chapter 11 or 13 proceeding and TenantXxxxxx’s trustee or Tenant as debtor-in-possession fails to assume this Lease within sixty (60) days from the date of the filing of such petition or conversion, then the trustee or the debtor-in-in- possession shall be deemed to have rejected this Lease. To be effective effective, any election to assume this Lease must be in writing addressed to Landlord and, in Landlord’s business judgment, all of the following conditions, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied:
(i) The trustee or the debtor-in-possession has cured or has provided to Landlord adequate assurance, as defined in this subparagraph (b), that the that
(1) The trustee will cure all monetary defaults under this Lease within ten (10) days from the date of assumption, and
(2) The trustee will cure all non-monetary defaults under this Lease within thirty (30) days from the date of assumption.
(ii) The trustee or the debtor-in-possession has compensated Landlord, or has provided Landlord with adequate assurance, as hereinafter defined, that that, within ten (10) days from the date of assumption assumption, Landlord will be compensated for any pecuniary loss it has incurred arising from the default of Tenant, the trustee, or the debtor-in-possession, as recited in Landlord’s written statement of pecuniary loss sent to the trustee or debtor-in-possession.
(iii) The trustee or the debtor-in-possession has provided Landlord with adequate assurance of the future performance of each of Tenant’s obligations under this Lease; provided, however, that:
(1. ) From and after the date of assumption of this Lease, the trustee or the debtor-in-in- possession shall pay Base Rent and Rent Adjustment payable under this Lease in advance in equal monthly installments on each date that such Rents rents are payable;
(2. ) The trustee or debtor-in-possession shall also deposit with Landlord, as security for the timely payment of Rentrent, an amount equal to three (3) months’ months Base Rent, Rent Adjustment and other monetary charges accruing under this Lease;
(3) 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 (1/12) of the Tenant’s annual Taxes, Operating Expenses, and other obligations under this Lease; and
3. (4) The obligations imposed upon the trustee or the debtor-in-possession will continue for Tenant after the completion of bankruptcy proceedings.
(iv) Landlord has determined that the assumption of this Lease will not:
(1) Breach any provision in any other lease, mortgage, financing agreement, or other agreement by which Landlord is bound relating to the Property or Building in which the Premises is located; , or
(2) Disrupt, in LandlordXxxxxxxx’s judgment, the tenant mix of the Building or any other attempt by Landlord to provide a specific variety of tenants in the Building which, in Landlord’s judgment, would be most beneficial to all of the tenants thereof and would enhance the image, reputation, reputation and profitability thereof.
(v) For purposes of this subparagraph (b), “adequate assurance” means that:
(1) Landlord determines that the trustee or the debtor-in-possession has, and will continue to have, sufficient unencumbered assets, after the payment of all secured obligations and administrative expenses, to assure Landlord that the trustee or the debtor-in-possession will have sufficient funds timely to fulfill Tenant’s obligations under this Lease; and
(2) An order shall have been entered segregating sufficient cash payable to Landlord and/or a valid and perfected first lien and security interest shall have been granted in property of Tenant, trustee, or debtor-in-possession which is acceptable in value and kind to Landlord, to secure to Landlord the obligation of the trustee or debtor-in-possession to cure all monetary and nonmonetary defaults under this Lease within the time periods set forth above.
(c) In the event this Lease is assumed by a trustee appointed for Tenant or by Tenant as debtor-in-possession under the provisions of subparagraph (b) above and, thereafter, Tenant is either adjudicated bankrupt or files a subsequent petition for arrangement under Chapter 11 of the Bankruptcy Code, then Landlord may, at its option, terminate this Lease and all the tenant’s rights under it, by giving written notice of Landlord’s election so to terminate.
(d) If the trustee or the debtor-in-possession has assumed this Lease, pursuant to subparagraph (a) or (b) above, to assign or to elect to assign Tenant’s interest under this Lease or the estate created by that interest to any other person, such interest or estate may be assigned only if the intended assignee has provided adequate assurance of future performance, as defined in this subparagraph (d), of all of the terms, covenants, and conditions of this Lease.
(i) For purposes of this subparagraph (d), “adequate assurance of future performance” means that Landlord has ascertained that each of the following conditions has been satisfied:
(1) The assignee has submitted a current financial statement, audited by a certified public accountant, which shows a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future performance by the assignee of the tenant’s obligations under this Lease;
(2) If requested by Landlord, the assignee will obtain guarantees, in form and substance satisfactory to Landlord (i.e. letter(s) of credit), from one or more persons who satisfy Landlord’s standards of creditworthiness; and
(3) Landlord has obtained consents or waivers from any third parties which may be required under any lease, mortgage, financing arrangement, or other agreement by which Landlord is bound, to enable Landlord to permit such assignment.
(e) When, pursuant to the Bankruptcy Code, the trustee or the debtor-in-possession is obligated to pay reasonable use and occupancy charges for the use of all or part of the Premises, it is agreed that such charges will not be less than the Rent as defined in this Lease.
(f) Neither Tenant’s interest in this Lease nor any estate of Tenant created in this Lease shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, nor otherwise by operation of law under the laws of any state having jurisdiction of the person or property of Tenant, unless Landlord consents in writing to such transfer. Landlord’s acceptance of rent or any other payments from any trustee, receiver, assignee, person, or other entity will not be deemed to have waived, or waive, either the requirement of Landlord’s consent or Landlord’s right to terminate this Lease for any transfer of Tenant’s interest under this Lease without such consent.
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Samples: Office Lease (MBX Biosciences, Inc.)
Bankruptcy or Insolvency. It is understood and agreed Section 18.1. In the event that the following Tenant shall apply in the event of the bankruptcy or insolvency of Tenant:
(a) If become a petition is filed by, or an order for relief is entered against Tenant Debtor under Chapter 7 of the Bankruptcy Code Code, and the trustee of Trustee or the Tenant elects shall elect to assume this Lease lease for the purpose of assigning itthe same or otherwise, such election or assignment, or both, and assignment may only be made only if all of the terms and conditions of subparagraphs (b) Sections 18.2 and (d) below 18.3 hereof 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 fails so such Trustee shall fail to elect to assume this Lease lease within sixty (60) days after his appointmentthe filing of the Petition, this Lease will lease shall be deemed to have been rejected, and . The Landlord shall then be thereupon immediately be entitled to possession of the Premises demised premises without further obligation to the Tenant or the trustee Trustee, and this Lease lease shall be terminated. , but the Landlord’s 's right to be compensated for damages both at law and as provided in the bankruptcy proceeding, however, ARTICLE XIV hereof in such case shall survive such terminationsurvive.
(b) If Tenant files a petition for reorganization under Chapters 11 A. No election by the Trustee or 13 of the Bankruptcy Code, or if a proceeding filed by or against Tenant under any other chapter of the Bankruptcy Code is converted to a Chapter 11 or 13 proceeding and Tenant’s trustee or Tenant as debtorDebtor-inIn-possession fails Possession to assume this Lease within sixty 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:
(601) The Trustee or the Debtor-In-Possession has cured, or has provided the Landlord adequate assurance (as hereinafter defined) that:
(a) Within ten (10) days from the date of such assumption, the filing of such petition or conversion, then the trustee or the debtor-in-possession shall be deemed to have rejected this Lease. To be effective any election to assume this Lease must be in writing addressed to Landlord and, in Landlord’s business judgment, all of the following conditions, which Landlord and Tenant acknowledge to be commercially reasonable, must have been satisfied:
(i) The trustee or the debtor-in-possession has cured or has provided to Landlord adequate assurance, as defined in this subparagraph (b), that the trustee Trustee will cure all monetary defaults under this Lease lease; and
(b) Within thirty (30) days from the date of such assumption, the Trustee will cure all nonmonetary defaults under this lease.
(2) 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.
(ii) The trustee or , the debtor-in-possession has compensated Landlord, or has provided Landlord with adequate assurance, as hereinafter defined, that within ten (10) days from the date of assumption Landlord will be compensated for any pecuniary loss it has incurred by the Landlord arising from the default of the Tenant, the trusteeTrustee, or the debtorDebtor-inIn-possession, Possession as recited in the Landlord’s 's written statement of pecuniary loss sent to the trustee Trustee or debtorDebtor-inIn-possessionPossession.
(iii3) The trustee Trustee or the debtorDebtor-inIn-possession Possession has provided the Landlord with adequate assurance (as hereinafter defined) of the future performance of each of the Tenant’s 's, the Trustee's or Debtor-In-Possession's obligations under this Lease; lease, provided, however, however that:
1. (a) Whether or 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 hereunder, one-twelfth (1/12th) of the Tenant's annual obligations under this lease for common area maintenance, Taxes, and any other charges payable hereunder.
(b) From and after the date of the assumption of this Leaselease, the trustee Trustee or the debtorDebtor-inIn-possession Possession shall pay Rent as annual minimum rent an amount equal to the sum of the annual minimum rent otherwise payable hereunder, plus the highest of the amounts of the annual percentage rent payable hereunder for and with respect to any of the then last three (3) full lease-years prior to the date of the Tenant's Petition under this Lease the Bankruptcy Code, which amount shall be payable in advance in equal monthly installments on each the date that minimum rent is payable hereunder; all as if such Rents are payable;amount had originally been specified in Section 1.1(f) of this lease as the minimum rent.
2. The trustee or debtor-in-possession shall also deposit with Landlord, as security for the timely payment of Rent, an amount equal to three (3c) months’ Rent and other monetary charges accruing under this Lease; and
3. The obligations imposed upon the trustee Trustee or Debtor-In-Possession under this lease shall continue with respect to the debtor-in-possession will continue for Tenant or any assignee of this lease after the completion of the bankruptcy proceedingscase, subject to any further and/or increased obligations which thereafter are imposed by any provisions of this lease.
(iv4) Landlord has determined that the The assumption of this Lease lease will not:
(1a) Breach any provision in this lease or any other lease, mortgage, financing agreement, agreement or other agreement by which the Landlord is bound relating to the Property or Building in which the Premises is locatedShopping Center; or
(2b) Disrupt, in the Landlord’s 's judgment, the tenant mix of the Building Shopping Center or any other attempt by the Landlord to provide a specific variety of tenants retail stores in the Building Shopping Center which, in the Landlord’s 's judgment, would be most beneficial to all of the tenants thereof of the Shopping Center and would enhance the image, reputation, and profitability thereofof the Shopping Center.
(v5) The Assumption has been ratified and approved by order of such court or courts as have jurisdiction under the Bankruptcy Code.
B. For the purposes of this subparagraph (b)Section 18.2, “the Landlord and the Tenant acknowledge that, in the context of a bankruptcy proceeding of the Tenant, at a minimum, "adequate assurance” means that" shall mean:
(1) Landlord determines that the trustee or the debtor-in-possession has, and will continue to have, sufficient unencumbered assets, after the payment of all secured obligations and administrative expenses, to assure Landlord that the trustee or the debtor-in-possession will have sufficient funds timely to fulfill Tenant’s obligations under this Lease; and
(2) An order shall have been entered segregating sufficient cash payable to Landlord and/or a valid and perfected first lien and security interest shall have been granted in property of Tenant, trustee, or debtor-in-possession which is acceptable in value and kind to Landlord, to secure to Landlord the obligation of the trustee or debtor-in-possession to cure all monetary and nonmonetary defaults under this Lease within the time periods set forth above.
(c) In the event this Lease is assumed by a trustee appointed for Tenant or by Tenant as debtor-in-possession under the provisions of subparagraph (b) above and, thereafter, Tenant is either adjudicated bankrupt or files a subsequent petition for arrangement under Chapter 11 of the Bankruptcy Code, then Landlord may, at its option, terminate this Lease and all the tenant’s rights under it, by giving written notice of Landlord’s election so to terminate.
(d) If the trustee or the debtor-in-possession has assumed this Lease, pursuant to subparagraph (a) or (b) above, to assign or to elect to assign Tenant’s interest under this Lease or the estate created by that interest to any other person, such interest or estate may be assigned only if the intended assignee has provided adequate assurance of future performance, as defined in this subparagraph (d), of all of the terms, covenants, and conditions of this Lease.
(i) For purposes of this subparagraph (d), “adequate assurance of future performance” means that Landlord has ascertained that each of the following conditions has been satisfied:
(1) The assignee has submitted a current financial statement, audited by a certified public accountant, which shows a net worth and working capital in amounts determined by Landlord to be sufficient to assure the future performance by the assignee of the tenant’s obligations under this Lease;
(2) If requested by Landlord, the assignee will obtain guarantees, in form and substance satisfactory to Landlord (i.e. letter(s) of credit), from one or more persons who satisfy Landlord’s standards of creditworthiness; and
(3) Landlord has obtained consents or waivers from any third parties which may be required under any lease, mortgage, financing arrangement, or other agreement by which Landlord is bound, to enable Landlord to permit such assignment.
(e) When, pursuant to the Bankruptcy Code, the trustee or the debtor-in-possession is obligated to pay reasonable use and occupancy charges for the use of all or part of the Premises, it is agreed that such charges will not be less than the Rent as defined in this Lease.
(f) Neither Tenant’s interest in this Lease nor any estate of Tenant created in this Lease shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, nor otherwise by operation of law under the laws of any state having jurisdiction of the person or property of Tenant, unless Landlord consents in writing to such transfer. Landlord’s acceptance of rent or any other payments from any trustee, receiver, assignee, person, or other entity will not be deemed to have waived, or waive, either the requirement of Landlord’s consent or Landlord’s right to terminate this Lease for any transfer of Tenant’s interest under this Lease without such consent.
Appears in 1 contract
