Common use of Bankruptcy Events Clause in Contracts

Bankruptcy Events. If at any time during the Term there shall be filed by or against Lessee in any court pursuant to any statute either of the United States or of any state, commonwealth, district or territory thereof a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Lessee's property or estate, or if a receiver or trustee takes possession of any of the assets of Lessee, or if the leasehold interest herein passes to a receiver, or if Lessee makes an assignment for the benefit of creditors or petitions for or enters into an arrangement (any of which are referred to herein as a "Bankruptcy Event"), then the following provisions shall apply: (a) Upon the occurrence of a Bankruptcy Event, or if Lessee takes advantage of any insolvency laws of any state, district, commonwealth or territory of the United States, then in any such event Lessor at its option and sole discretion may terminate this Lease at any time by written notice to Lessee (subject, however, to applicable provisions of the applicable bankruptcy federal or state statutes or any insolvency laws during the pendency of any action thereunder involving Lessee as the subject debtor). If this Lease is terminated under this Article: (i) Lessee agrees to immediately surrender and vacate the Leased Premises, waives all statutory or other notice to quit, and agrees that Lessor's obligations under this Lease shall cease from such termination date; and (ii) Lessor may recover possession by process of law or in any other lawful manner. Furthermore, if this Lease terminates under this Section (a), Lessor shall, subject to the Bankruptcy Code, have all rights and remedies against Lessee as provided in this Lease and at law for a default of Lessee in the payment of Minimum Rent, Percentage Rent, if any, and/or additional Rent. Lessee hereby acknowledges that it shall have abandoned all of its personal property remaining in the Leased Premises after Lessee surrenders possession of the Leased Premises, and Lessee hereby authorizes Lessor to dispose of such personal property in any manner Lessor deems appropriate without accounting to governs or shall govern the proceedings in which such damages are to be proved limits or shall limit the amount of such claim capable of so being proved, in which case Lessor shall be entitled to prove as and for liquidated damages an amount equal to that allowed by or under any such statute. When calculating damages hereunder, Lessor shall be entitled to recover the amount of any "free rent" or other concessions extended by Lessor and received by Lessee prior to the premature expiration of this Lease, it being agreed by Lessee that such "free rent" and concessions were contingent upon Lessee fulfilling its obligations for the entire term of this Lease. The provisions of this paragraph shall be without prejudice to (i) Lessor's right to prove in full damages for Minimum Rent, Percentage Rent, if any, and additional Rent accrued prior to the termination of this Lease, but not paid, and (ii) any rights given to Lessor by any pertinent statute to prove any amounts allowed thereby. In making any such computation, the then cash rental value of the Leased Premises shall be deemed prima facie to be the rental realized upon any reletting, if such reletting can be accomplished by Lessor within a reasonable time after such termination of this Lease, and the then present cash value of the future rents hereunder reserved to Lessor for the unexpired portion of the Lease Term hereby demised shall be deemed to be such sum, if invested at the then current passbook account rate offered by W▇▇▇▇ Fargo Bank, N.A. at its main office in San Francisco, as will produce the future rent over the period of time in question. Lessor and Lessee further agree that in making any computation of damages for Lessee holding over after the termination of this Lease, Lessor may claim damages based on the Minimum Rent, Percentage Rent, if any, and additional Rent provided herein for the period of such hold over, it being agreed that the Minimum Rent, Percentage Rent, if any, and additional Rent constitutes the fair rental value of the Leased Premises during the hold over period. (i) Notwithstanding subsection (h) of this Article 31, Lessor specifically reserves any and all remedies available to Lessor in Article 30 hereof or at law or in equity in respect of a Bankruptcy Event to the extent such remedies are permitted by law.

Bankruptcy Events. If at any time during the Term there shall be filed by or against Lessee in any court pursuant to any statute either of the United States or of any state, commonwealth, district or territory thereof state a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Lessee's property or estate’s property, or if a receiver or trustee takes possession of any of the assets of Lessee, or if the leasehold interest herein passes to a receiver, or if Lessee ▇▇▇▇▇▇ makes an assignment for the benefit of creditors or petitions for or enters into an arrangement (any of which are referred to herein as “a "Bankruptcy Event"bankruptcy event”), then the following provisions shall apply: (a) Upon At all events any receiver or trustee in bankruptcy or Lessee as debtor in possession (“debtor”) shall either expressly assume or reject this Lease within sixty (60) days following the occurrence entry of a Bankruptcy Event, or if Lessee takes advantage an Order for Relief. (b) In the event of any insolvency laws of any state, district, commonwealth or territory an assumption of the United StatesLease by a debtor, then in receiver or trustee, such debtor, receiver or trustee shall immediately after such assumption (1) cure any such event default or provide adequate assurances that defaults will be promptly cured; and (2) compensate Lessor at its option for actual pecuniary loss or provide adequate assurances that compensation will be made for actual pecuniary loss; and sole discretion may terminate (3) provide adequate assurance of future performance. For the purposes of this Section 31.1(b), adequate assurance of future performance of all obligations under this Lease at any time by written notice to Lessee (subjectshall include, however, to applicable provisions of the applicable bankruptcy federal or state statutes or any insolvency laws during the pendency of any action thereunder involving Lessee as the subject debtor). If this Lease but is terminated under this Articlenot limited to: (i) Lessee agrees Written assurance that rent and any other consideration due under the Lease shall first be paid before any other of Lessee’s costs of operation of its business in the Leased Premises are paid; (ii) Written agreement that assumption of this Lease will not cause a breach of any provision hereof including, but not limited to, any provision relating to immediately surrender and vacate use or exclusivity in this or any other Lease, or agreement relating to the Leased Premises, waives all statutory or other notice if such a breach is caused, the debtor, receiver or trustee will indemnify Lessor against such loss (including costs of suit and attorneys’ fees), occasioned by such breach; (c) Where a default exists under the Lease, the party assuming the Lease may not require Lessor to quitprovide services or supplies incidental to the Lease before its assumption by such trustee or debtor, unless Lessor is compensated under the terms of the Lease for such services and agrees that Lessor's obligations under supplies provided before the assumption of such Lease. (d) The debtor, receiver, or trustee may only assign this Lease shall cease from such termination date; in accordance with the terms of Article 25 and (ii) Lessor may recover possession if adequate assurance of future performance by process the assignee is provided, whether or not there has been a default under the Lease. For the purpose hereof, adequate assurance of law future performance means written agreement that assignment of this Lease will not cause a breach of any provision hereof including, but not limited to, any provision relating to use or exclusivity in this or any other lawful manner. Furthermore, if this Lease terminates under this Section (a), Lessor shall, subject or agreement relating to the Bankruptcy Code, have all rights and remedies against Lessee as provided in this Lease and at law for a default of Lessee in the payment of Minimum Rent, Percentage Rent, if any, and/or additional Rent. Lessee hereby acknowledges that it shall have abandoned all of its personal property remaining in the Leased Premises after Lessee surrenders possession of the Leased Premises, and Lessee hereby authorizes that if such a breach is caused, the debtor, receiver or trustee will indemnify Lessor against such loss (including costs of suit and attorney’s fees), occasioned by such breach. Any consideration paid by any assignee in excess of the rental reserved in the Lease shall be the sole property of, and paid to, Lessor. Upon assignment by the debtor or trustee, the obligations of the Lease shall be deemed to dispose have been assumed and the assignee shall execute an assumption agreement on request of such personal property in any manner Lessor deems appropriate without accounting to governs or shall govern the proceedings in which such damages are to be proved limits or shall limit the amount of such claim capable of so being proved, in which case ▇▇▇▇▇▇. (e) Lessor shall be entitled to prove as and the fair market value for liquidated damages an amount equal to that allowed by or under any such statute. When calculating damages hereunder, Lessor shall be entitled to recover the amount of any "free rent" or other concessions extended by Lessor and received by Lessee prior to the premature expiration of this Lease, it being agreed by Lessee that such "free rent" and concessions were contingent upon Lessee fulfilling its obligations for the entire term of this Lease. The provisions of this paragraph shall be without prejudice to (i) Lessor's right to prove in full damages for Minimum Rent, Percentage Rent, if any, and additional Rent accrued prior to the termination of this Lease, but not paid, and (ii) any rights given to Lessor by any pertinent statute to prove any amounts allowed thereby. In making any such computation, the then cash rental value of the Leased Premises shall be deemed prima facie to be and the services provided by Lessor (but in no event less than the rental realized upon any reletting, if such reletting can be accomplished by Lessor within reserved in the Lease) subsequent to the commencement of a reasonable time after such termination of this Lease, and the then present cash value of the future rents hereunder reserved to Lessor for the unexpired portion of the Lease Term hereby demised shall be deemed to be such sum, if invested at the then current passbook account rate offered by W▇▇▇▇ Fargo Bank, N.A. at its main office in San Francisco, as will produce the future rent over the period of time in question. Lessor and Lessee further agree that in making any computation of damages for Lessee holding over after the termination of this Lease, Lessor may claim damages based on the Minimum Rent, Percentage Rent, if any, and additional Rent provided herein for the period of such hold over, it being agreed that the Minimum Rent, Percentage Rent, if any, and additional Rent constitutes the fair rental value of the Leased Premises during the hold over periodbankruptcy event. (if) Notwithstanding subsection (h) of this Article 31, Lessor specifically reserves any and all remedies available to Lessor in Article 30 hereof or at law or in equity in respect of a Bankruptcy Event bankruptcy event by Lessee to the extent such remedies are permitted by law.

Bankruptcy Events. If at Prior to the Payment Date, the Tranche C Lenders, with respect to the Lender Obligations in favor of the Tranche C Lenders, will not commence or join with any time during other creditor or creditors of the Term there shall be filed by Borrower or against Lessee a Borrower Subsidiary in commencing any Bankruptcy Event other than as a party to this Agreement. In the event of a Bankruptcy Event, then and in any court pursuant to any statute either of the United States or of any state, commonwealth, district or territory thereof a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Lessee's property or estate, or if a receiver or trustee takes possession of any of the assets of Lessee, or if the leasehold interest herein passes to a receiver, or if Lessee makes an assignment for the benefit of creditors or petitions for or enters into an arrangement (any of which are referred to herein as a "Bankruptcy Event"), then the following provisions shall applysuch event and from and after such event: (a) Upon the occurrence of a Bankruptcy Event, or if Lessee takes advantage of any insolvency laws of any state, district, commonwealth or territory of the United States, then in any such event Lessor at its option and sole discretion may terminate this Lease at any time by written notice to Lessee (subject, however, to applicable provisions of the applicable bankruptcy federal or state statutes or any insolvency laws during the pendency of any action thereunder involving Lessee as the subject debtor). If this Lease is terminated under this Article: (i) Lessee agrees to immediately surrender and vacate the Leased Premises, waives all statutory or other notice to quit, and agrees that Lessor's obligations under this Lease shall cease from such termination date; and (ii) Lessor may recover possession by process of law or in any other lawful manner. Furthermore, if this Lease terminates under this Section (a), Lessor shall, subject to the Bankruptcy Code, have all rights and remedies against Lessee as provided in this Lease and at law for a default of Lessee in the payment of Minimum Rent, Percentage Rent, if any, and/or additional Rent. Lessee hereby acknowledges that it shall have abandoned all of its personal property remaining in the Leased Premises after Lessee surrenders possession of the Leased Premises, and Lessee hereby authorizes Lessor to dispose of such personal property in any manner Lessor deems appropriate without accounting to governs or shall govern the proceedings in which such damages are to be proved limits or shall limit the amount of such claim capable of so being proved, in which case Lessor The A/B Lenders shall be entitled to prove as and for liquidated damages an amount equal receive payment in full of all amounts due on or in respect of all A/B Loans in cash or cash equivalents or in a manner satisfactory to that allowed the Agent, before the Tranche C Lenders are entitled to receive any payment or distribution of any kind or character, or a Borrower Subsidiary. (b) Any payment or distribution of assets of the Borrower or a Borrower Subsidiary of any kind or character, whether in cash, property or securities, by setoff or under any such statute. When calculating damages hereunderotherwise, Lessor shall to which the Tranche C Lenders would be entitled to recover the amount of any "free rent" or other concessions extended by Lessor and received by Lessee prior to the premature expiration of this Lease, it being agreed by Lessee that such "free rent" and concessions were contingent upon Lessee fulfilling its obligations but for the entire term of this Lease. The provisions of this paragraph Agreement shall be paid by the liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the Agent on behalf of the A/B Lenders according to the aggregate amounts remaining unpaid on account of the A/B Loans held or represented by each, to the extent necessary to make payment in full of all A/B Loans in cash or cash equivalents remaining unpaid, after giving effect to any concurrent payment or distribution to the A/B Lenders with such payments being made in the order and pursuant to the terms of this Agreement. (c) In the event that, notwithstanding the foregoing provisions of this Agreement, the Tranche C Lenders shall have received any payment or distribution of assets of the Borrower or a Borrower Subsidiary of any kind or character, except as provided in Section 17.1, whether in cash, property or securities in respect of Tranche C before the Payment Date, then and in such event such payment or distribution shall be received and shall be paid over or delivered forthwith to the Agent; (d) The Tranche C Lenders, with respect to the Lender Obligations in favor of the Tranche C Lenders, will not, without prejudice to the prior written consent of the A/B Lenders: (i) Lessor's right to prove vote for a plan in full damages for Minimum Rent, Percentage Rent, if any, and additional Rent accrued prior to any Bankruptcy Proceedings not supported by the termination of this Lease, but not paid, and Agent; (ii) object to or oppose any rights given motions by the Agent for a cash collateral order on terms proposed by the Agent; (iii) seek or move to Lessor by any pertinent statute to prove any amounts allowed thereby. In making any such computation, obtain the then cash rental value appointment of a trustee on behalf of the Leased Premises Borrower or a Borrower Subsidiary; or (iv) object to or oppose any motions by the Agent for the lifting of the automatic stay for the purpose of the foreclosure of the Collateral. The limitations and assignments contained in this section shall be deemed prima facie terminate upon the Payment Date. The Tranche C Lenders with respect to the Lender Obligations in favor of the Tranche C Lenders agree, however, never (i) to file any appeal or take any other action claiming that the payment of the A/B Loans was improperly paid; (ii) to question the validity of a plan or reorganization which caused the A/B Loans to be paid; or (iii) to otherwise question the rental realized upon any reletting, if such reletting can be accomplished by Lessor within a reasonable time after such termination of this Lease, and the then present cash value payment of the future rents hereunder reserved to Lessor for A/B Loans or any collateral realization actions under the unexpired portion of the Lease Term hereby demised shall be deemed to be such sum, if invested at the then current passbook account rate offered by W▇▇▇▇ Fargo Bank, N.A. at its main office in San Francisco, as will produce the future rent over the period of time in question. Lessor and Lessee further agree that in making any computation of damages for Lessee holding over after the termination of this Lease, Lessor may claim damages based on the Minimum Rent, Percentage Rent, if any, and additional Rent provided herein for the period of such hold over, it being agreed that the Minimum Rent, Percentage Rent, if any, and additional Rent constitutes the fair rental value of the Leased Premises during the hold over periodLender Agreements. (ie) Notwithstanding subsection (h) Without limiting the generality of this Article 31the foregoing, Lessor specifically reserves any and all remedies available to Lessor in Article 30 hereof or at law or in equity in respect of the Tranche C Lenders agree that if a Bankruptcy Event occurs, the A/B Lenders may provide financing or consent to the extent granting of a priming lien to secure post-petition financing on such remedies terms and conditions and in such amounts as the Agent, in its sole and absolute discretion, may decide without seeking or obtaining the consent of the Tranche C Lenders, who shall not oppose any such financing. The Tranche C Lenders, with respect to the Lender Obligations in favor of the Tranche C Lenders, shall not oppose any sale or other disposition of any assets comprising part of the Collateral free and clear of security interests, liens or other claims of any Person, including any Tranche C Lender, under section 363 of the Bankruptcy Code on the basis that the Tranche C Lenders' interest in the Collateral is impaired by such sale or inadequately protected as a result of such sale. (f) So long as the Payment Date has not occurred, no Tranche C Lenders shall offer or make available to the Borrower or a Borrower Subsidiary or participate in, any loan, credit facility, financial accommodation or other Indebtedness proposed to be provided as a debtor-in-possession financing in connection with a Bankruptcy Event (a "DIP Financing"), unless the Tranche C Lenders who are permitted by lawproviding such DIP Financing shall first repay in full and in cash the A/B Loans or exercise the rights of the Tranche C Lenders under Section 17.4.

Bankruptcy Events. If at any time during (a) Any of the Term there Cases shall be dismissed (or the Bankruptcy Court shall make a ruling requiring the dismissal of the Cases), suspended or converted to a case under chapter 7 of the Bankruptcy Code; or an application shall be filed by or against Lessee in any court pursuant to any statute either of the United States or of any state, commonwealth, district or territory thereof a petition in bankruptcy or insolvency or for reorganization or Credit Party for the appointment of a receiver or trustee of all or a portion of Lessee's property or estateapproval of, or if a receiver or trustee takes possession of any of the assets of Lesseethere shall arise, or if the leasehold interest herein passes to a receiver, or if Lessee makes an assignment for the benefit of creditors or petitions for or enters into an arrangement (any of which are referred to herein as a "Bankruptcy Event"), then the following provisions shall apply: (a) Upon the occurrence of a Bankruptcy Event, or if Lessee takes advantage of any insolvency laws of any state, district, commonwealth or territory of the United States, then in any such event Lessor at its option and sole discretion may terminate this Lease at any time by written notice to Lessee (subject, however, to applicable provisions of the applicable bankruptcy federal or state statutes or any insolvency laws during the pendency of any action thereunder involving Lessee as the subject debtor). If this Lease is terminated under this Article: (i) Lessee agrees to immediately surrender and vacate the Leased Premises, waives all statutory or other notice to quit, and agrees that Lessor's obligations under this Lease shall cease from such termination date; and (ii) Lessor may recover possession by process of law or in any other lawful manner. Furthermore, if this Lease terminates Claim having priority senior to or pari passu with the claims of the Administrative Agent and the Lenders under this Section (a), Lessor shall, subject to the Credit Documents or any other claim having priority over any or all administrative expenses of the kind specified in sections 503(b) or 507(b) of the Bankruptcy Code, have all rights and remedies against Lessee as provided in this Lease and at law for a default of Lessee in Code (other than the payment of Minimum Rent, Percentage Rent, if any, and/or additional Rent. Lessee hereby acknowledges that it shall have abandoned all of its personal property remaining in the Leased Premises after Lessee surrenders possession of the Leased Premises, and Lessee hereby authorizes Lessor to dispose of such personal property in any manner Lessor deems appropriate without accounting to governs Carve-Out) or shall govern the proceedings in which such damages are to be proved limits or shall limit the amount of such claim capable of so being proved, in which case Lessor shall be entitled to prove as and for liquidated damages an amount equal to that allowed by or under any such statute. When calculating damages hereunder, Lessor shall be entitled to recover the amount of any "free rent" or other concessions extended by Lessor and received by Lessee prior to the premature expiration of this Lease, it being agreed by Lessee that such "free rent" and concessions were contingent upon Lessee fulfilling its obligations for the entire term of this Lease. The provisions of this paragraph shall be without prejudice to (i) Lessor's right to prove in full damages for Minimum Rent, Percentage Rent, if any, and additional Rent accrued prior to the termination of this Lease, but not paid, and (ii) any rights given Lien on the Collateral having a priority senior to Lessor or pari passu with the Liens and security interests granted herein, except as expressly provided herein, or, in each case set forth above, any motion for such relief shall be granted by the Bankruptcy Court that is not stayed; or (b) Any Credit Party shall file a motion seeking, or the Bankruptcy Court shall enter, an order, other than motions filed (and orders based thereon) prior to the date of this Agreement and any pertinent statute to prove orders authorizing the payment of Pre-Petition Claims of critical trade vendors, (i) approving payment of any amounts allowed thereby. In making any such computationPre-Petition Claim other than a Permitted Pre-Petition Claim Payment other than as approved by the Required Lenders, (ii) approving an order not approved by the then cash rental Administrative Agent, which order allows payment of Pre-Petition Claims or otherwise impairs the value of the Leased Premises shall be deemed prima facie to be Administrative Agent's pre-petition or post-petition Claims, (iii) granting relief from the rental realized upon any reletting, if such reletting can be accomplished by Lessor within a reasonable time after such termination of this Lease, and the then present cash value automatic stay applicable under section 362 of the future rents hereunder reserved Bankruptcy Code to Lessor for any holder of any security interest to permit foreclosure on any assets (other than certain assets identified by the unexpired portion Borrower and agreed to by the Administrative Agent in writing) having a book value in excess of $100,000 in the Lease Term hereby demised shall be deemed to be such sumaggregate, if invested at the then current passbook account rate offered by W▇▇▇▇ Fargo Bank, N.A. at its main office in San Francisco, as will produce the future rent over the period of time in question. Lessor and Lessee further agree that in making any computation of damages for Lessee holding over after the termination of this Lease, Lessor may claim damages based on the Minimum Rent, Percentage Rent, if any, and additional Rent provided herein for the period of such hold over, it being agreed that the Minimum Rent, Percentage Rent, if any, and additional Rent constitutes the fair rental value of the Leased Premises during the hold over period. or (iiv) Notwithstanding subsection (h) of this Article 31, Lessor specifically reserves any and all remedies available to Lessor in Article 30 hereof or at law or in equity in respect of a Bankruptcy Event except to the extent such remedies are permitted by law.the same would not constitute a Default under any of the previous clauses, approving any settlement or other stipulation with any creditor of any Credit Party, other than the

Bankruptcy Events. If at any time during the Term there a Bankruptcy Event shall be filed by or against Lessee in any court pursuant to any statute either of the United States or of any state, commonwealth, district or territory thereof a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Lessee's property or estate, or if a receiver or trustee takes possession of any of the assets of Lessee, or if the leasehold interest herein passes to a receiver, or if Lessee makes an assignment for the benefit of creditors or petitions for or enters into an arrangement (any of which are referred to herein as a "Bankruptcy Event")occur, then the following provisions shall apply: (a) Upon the occurrence of a Bankruptcy Event, or if Lessee Tenant takes advantage of any insolvency laws of any state, district, commonwealth or territory of the United States, then in any such event Lessor Landlord at its option and sole discretion may terminate this Lease at any time by written notice to Lessee Tenant (subject, however, to applicable provisions of the applicable bankruptcy federal or state statutes or any insolvency laws during the pendency of any action thereunder involving Lessee Tenant as the subject debtor). If this Lease is terminated under this Article: , (i) Lessee Tenant agrees to immediately surrender and vacate the Leased Premises, waives all statutory or other notice to quit, and agrees that Lessor's Landlord’s obligations under this Lease shall cease from such termination date; , and (ii) Lessor Landlord may recover possession by process of law or in any other lawful manner. Furthermore, if this Lease terminates under this Section (a)subsection, Lessor Landlord shall, subject to the Bankruptcy Code, have all rights and remedies against Lessee Tenant as provided in this Lease and at law for a default of Lessee Tenant in the payment of Minimum Rent, Percentage Rent, if any, and/or additional Rentrent and other sums payable hereunder. Lessee Tenant hereby acknowledges that it shall have abandoned all of its personal property remaining in the Leased Premises after Lessee Tenant surrenders possession of the Leased PremisesPremises (but without waiver of the rights of any then-existing lienholders in such personal property), and Lessee Tenant hereby authorizes Lessor Landlord to dispose of such personal property in any manner Lessor Landlord deems appropriate without accounting to Tenant or its legal representative for the proceeds thereof. Notwithstanding the foregoing, Landlord retains the right to assert an administrative claim and a general unsecured claim that result from a breach of this Lease including, without limitation, the cost to remove Tenant’s personal property from the Premises and to restore the Premises after Tenant surrenders possession thereof. (b) In all events any receiver or trustee in bankruptcy or Tenant as debtor in possession shall, by written notice, either expressly assume or reject this Lease within one hundred twenty (120) days following the entry of an “Order for Relief.” Failure of the trustee to give notice of such assumption hereof within said period shall conclusively and irrevocably constitute a rejection of this Lease and waiver of any rights to assume or assign this Lease. (c) Tenant or the receiver or trustee shall not have the right to assume this Lease unless (1) Tenant or the receiver or trustee cures any default or provides adequate assurances that defaults will be promptly cured; (2) Tenant or the receiver or trustee compensates Landlord and any other party other then Landlord for all monetary damages and/or any actual pecuniary loss incurred as a result of such default or provides adequate assurances that compensation will be made for such monetary damages and/or actual pecuniary loss; (3) the Bankruptcy Court (or other court of competent jurisdiction) enters an order authorizing the assumption or assignment; (4) the assumption or assignment is not prohibited under applicable law, including, but not limited to, Section 365 of the Bankruptcy Code; and (5) Tenant or the receiver or trustee provides to Landlord “adequate assurance of future performance” (as defined herein below) of the Lease. For the purposes of this paragraph, “adequate assurance of future performance” of all obligations under this Lease shall include, but is not limited to: (i) providing financial records which reveal that Tenant’s gross receipts in the ordinary course of its business during the thirty (30) days immediately preceding the initiation of the case under the Bankruptcy Code must be at least ten (10) times greater than the next installment of Minimum Rent and other charges due under this Lease; (ii) providing financial records which reveal that both the average and median of Tenant’s monthly gross receipts in the ordinary course of business during the six (6) months immediately preceding initiation of the case under the Bankruptcy Code must be at least five (5) times greater than the next installment of Minimum Rent and other charges due under this Lease; (iii) covenanting in writing to Landlord (and obtaining approval from the Bankruptcy Court therefor) that Tenant shall pay in advance to Landlord all Minimum Rent and other sums payable by Tenant hereunder including, but not limited to, its share (as estimated by Landlord) of the cost of all services provided by Landlord (whether directly or through agents or contractors, and whether or not the cost of such services is to be passed through to Tenant) in advance of the performance or provision of such services; (iv) covenanting in writing to Landlord (and obtaining approval from the Bankruptcy Court therefor) that Tenant shall pay Minimum Rent and any other consideration due under the Lease shall first be paid before any other of Tenant’s costs of operation of its business in the Premises are paid; (v) covenanting in writing to Landlord (and obtaining approval from the Bankruptcy Court therefor) that Tenant’s business shall be conducted in a first class manner, and that no liquidating sales, auctions, or other non-first class business operations shall be conducted on the Premises, and that the use of the Premises as stated in this Lease will remain unchanged, and that the assumption or assignment of this Lease will not violate or adversely affect the rights of any occupants of property neighboring the Premises, and that if any of these breaches occur, Tenant or the receiver or trustee will indemnify Landlord against such loss (including costs of suit and attorneys’ fees), occasioned by such breach; and (vi) in the event this Lease is for space within a shopping center, Tenant reasonably satisfying any additional requirements imposed under Section 365(b)(3) of the Bankruptcy Code. (d) Where a default exists under the Lease, the party assuming the Lease may not require Landlord to provide services or supplies incidental to the Lease before its assumption, unless Landlord is compensated under the terms of the Lease for such services and supplies before the assumption of such Lease. (e) In the event Tenant is unable to: (i) cure its defaults, (ii) reimburse Landlord or any other party to this Lease for its monetary damages or actual pecuniary loss to such party resulting from the defaults, (iii) pay the rents due under this Lease or any other payments required of Tenant under this Lease when due, or (iv) meet the criteria and obligations imposed by (i) through (vi) in Subsection (c) above, then Tenant hereby agrees in advance that it has not met its burden to provide adequate assurance of future performance and therefore cannot assume this Lease, and this Lease may be immediately terminated by Landlord in accordance with Subsection (a) above. (f) Tenant or the receiver or trustee may only assign this Lease in accordance with the terms of Article 7 and this Article, and only if adequate assurance of future performance by the assignee is provided, whether or not there has been a default under the Lease. Any consideration paid by any assignee in excess of the rental reserved in the Lease shall be the sole property of, and paid to, Landlord. Upon assignment by Tenant or the receiver or trustee, the obligations of Tenant under this Lease shall be deemed to have been assumed by the assignee, and the assignee shall execute an assumption agreement on request of Landlord. (g) Subsequent to the commencement of a Bankruptcy Event, Landlord shall be entitled to receive as rental for the Premises and the services provided by Landlord no less than the rental and charges reserved in the Lease. (h) It is further stipulated and agreed that, notwithstanding any provision herein to the contrary, in the event of the termination of this Lease pursuant this Article, Landlord shall forthwith, upon such termination, to the extent that Landlord is prevented by the Bankruptcy Code from pursuing remedies under this Lease, and/or as provided by state law, become entitled to recover as liquidated damages for the breach of the provisions of this Lease an amount equal to the amount by which the then cash value of the Minimum Rent reserved hereunder for the unexpired portion of the Lease Term exceeds the then cash rental value of the Premises for such unexpired portion of the Lease Term, unless the statute which governs or shall govern the proceedings in which w`hich such damages are to be proved limits or shall limit the amount of such claim capable of so being proved, in which case Lessor Landlord shall be entitled to prove as and for liquidated damages an amount equal to that allowed by or under any such statute. When calculating damages hereunder, Lessor Landlord shall be entitled to recover the amount of any "“free rent" ” or other concessions extended by Lessor Landlord and received by Lessee Tenant prior to the premature expiration of this Lease, it being agreed by Lessee Tenant that such "“free rent" ” and concessions were contingent upon Lessee Tenant fulfilling its obligations for the entire term of this Lease. The provisions of this paragraph shall be without prejudice to (i) Lessor's Landlord’s right to prove in full damages for Minimum Rent, Percentage Rent, if any, Rent and additional Rent rent accrued prior to the termination of this Lease, but not paid, and (ii) any rights given to Lessor Landlord by any pertinent statute to prove any amounts allowed thereby. In making any such computation, the then cash rental value of the Leased Premises shall be deemed prima facie facia to be the rental realized upon any reletting, if such reletting can be accomplished by Lessor Landlord within a reasonable time after such termination of this Lease, and the then present cash value of the future rents hereunder reserved to Lessor Landlord for the unexpired portion of the Lease Term hereby demised shall be deemed to be such sum, if invested at the then current passbook account rate offered by W▇▇▇▇ Fargo Bank, N.A. Comerica Bank at its main office in San FranciscoDetroit, Michigan, as will produce the future rent over the period of time in question. Lessor Landlord and Lessee Tenant further agree that in making any computation of damages for Lessee Tenant holding over after the termination of this Lease, Lessor Landlord may claim damages based on the Minimum Rent, Percentage Rent, if any, Rent and additional Rent rent provided herein for the period of such hold over, it being agreed that the Minimum Rent, Percentage Rent, if any, Rent and additional Rent rent constitutes the fair rental value of the Leased Premises during the hold over period. (i) Notwithstanding subsection (h) of anything in this Article 31to the contrary, Lessor Landlord specifically reserves any and all remedies available to Lessor Landlord in Article 30 22 hereof or elsewhere in this Lease or at law or in equity in respect of a Bankruptcy Event to the extent such remedies are permitted by law.

Bankruptcy Events. If at any time during the Lease Term there shall be filed by or against Lessee in any court pursuant to any statute either of on the United States or of any state, commonwealth, district or territory thereof State a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Lessee's property or estateproperty, or if a receiver or trustee takes possession of any of the assets of Lessee, or if the leasehold interest herein passes to a receiver, or if Lessee makes an assignment for the benefit of creditors or petitions for or enters into an arrangement (any of which are referred to herein as "a "Bankruptcy Event"), then the following provisions shall apply: (a) Upon At all events any receiver or trustee in bankruptcy or Lessee as debtor in possession ("debtor"), shall either expressly assume or reject this Lease within sixty (60) days following the occurrence entry of any "Order for Relief." (b) In the event of an assumption of the Lease by a Bankruptcy Eventdebtor, receiver, or if Lessee takes advantage trustee, such debtor, receiver, or trustee shall immediately after such assumption (1) cure any default or provided adequate assurances that defaults will be promptly cured; and (2) compensate Lessor for actual pecuniary loss or provided adequate assurances that compensation will be make for actual pecuniary loss; and (3) provide adequate assurance of any insolvency laws future performance. For purposes of any statethis Section 31.1(b), district, commonwealth or territory adequate assurance of the United States, then in any such event Lessor at its option and sole discretion may terminate future performance of all obligations under this Lease at any time by written notice to Lessee (subjectshall include, however, to applicable provisions of the applicable bankruptcy federal or state statutes or any insolvency laws during the pendency of any action thereunder involving Lessee as the subject debtor). If this Lease but is terminated under this Articlenot limited to: (i) Lessee agrees written assurance that rent and any other consideration due under the Lease shall first be paid before any other of Lessee's costs of operation of its business in the Leased Premises are paid; ------------- ----------- Lessor's Lessee's Initials Initials (ii) written agreement that assumption of this Lease will not cause a breach of any provision hereof including, but not limited to, any provision relating to immediately surrender and vacate use or exclusivity in this or any other Lease, or agreement relating to the Leased Premises, waives all statutory or other notice if such a breach is caused, the debtor, receiver or trustee will indemnify Lessor against such loss (including costs of suit and attorney's fees), occasioned by such breach; (c) Where a default exist under the Lease, the party assuming the Lease may not require Lessor to quitprovide services or supplies incidental to the Lease before its assumption by such trustee or debtor, unless Lessor is compensated under the terms of the Lease for such services and supplies provided before the assumption of such Lease. (d) The debtor, receiver, or trustee may only assign this Lease if adequate assurance of future performance by the assignee is provided, whether or not there has been a default under the Lease. Any consideration paid by any assignee in excess of the rental reserved by the Lease shall be the sole property of, and agrees that paid to, Lessor's . Upon assignment by the debtor or trustee the obligations under this of the Lease shall cease from such termination date; be deemed to have been assumed and the assumptor shall execute an assignment agreement on request of Lessor. (iie) Lessor may recover possession by process of law or in any other lawful manner. Furthermore, if this Lease terminates under this Section (a), Lessor shall, subject to the Bankruptcy Code, have all rights and remedies against Lessee as provided in this Lease and at law for a default of Lessee in the payment of Minimum Rent, Percentage Rent, if any, and/or additional Rent. Lessee hereby acknowledges that it shall have abandoned all of its personal property remaining in the Leased Premises after Lessee surrenders possession of the Leased Premises, and Lessee hereby authorizes Lessor to dispose of such personal property in any manner Lessor deems appropriate without accounting to governs or shall govern the proceedings in which such damages are to be proved limits or shall limit the amount of such claim capable of so being proved, in which case Lessor shall be entitled to prove as and the fair market value for liquidated damages an amount equal to that allowed by or under any such statute. When calculating damages hereunder, Lessor shall be entitled to recover the amount of any "free rent" or other concessions extended by Lessor and received by Lessee prior to the premature expiration of this Lease, it being agreed by Lessee that such "free rent" and concessions were contingent upon Lessee fulfilling its obligations for the entire term of this Lease. The provisions of this paragraph shall be without prejudice to (i) Lessor's right to prove in full damages for Minimum Rent, Percentage Rent, if any, and additional Rent accrued prior to the termination of this Lease, but not paid, and (ii) any rights given to Lessor by any pertinent statute to prove any amounts allowed thereby. In making any such computation, the then cash rental value of the Leased Premises shall be deemed prima facie to be and the services provided by Lessor (but in no event less than the rental realized upon any reletting, if such reletting can be accomplished by Lessor within reserved in the Lease) subsequent to the commencement of a reasonable time after such termination of this Lease, and the then present cash value of the future rents hereunder reserved to Lessor for the unexpired portion of the Lease Term hereby demised shall be deemed to be such sum, if invested at the then current passbook account rate offered by W▇▇▇▇ Fargo Bank, N.A. at its main office in San Francisco, as will produce the future rent over the period of time in question. Lessor and Lessee further agree that in making any computation of damages for Lessee holding over after the termination of this Lease, Lessor may claim damages based on the Minimum Rent, Percentage Rent, if any, and additional Rent provided herein for the period of such hold over, it being agreed that the Minimum Rent, Percentage Rent, if any, and additional Rent constitutes the fair rental value of the Leased Premises during the hold over periodbankruptcy event. (if) Notwithstanding subsection (h) of this Article 31, Lessor specifically reserves any and all remedies available to Lessor in Article 30 22 hereof or at law or in equity in respect of a Bankruptcy Event bankruptcy event by Lessee to the extent such remedies are permitted by law.