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28.04[2] Example 1: Typical Landlord's Bankruptcy ClauseSection 28.1: In the event Tenant shall become a debtor under Chapter 7 of the federal Bankruptcy Code as it may be amended or under any successor statute thereto (the "Bankruptcy Code"), and the Trustee of Tenant's property or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may only be made if all of the terms and conditions of Sections 28.2 and 28.3 are satisfied. If such Trustee shall fail to elect or assume this Lease within sixty (60) days after the filing of the petition, this Lease shall be deemed to have been rejected. Landlord shall thereupon be immediately entitled to possession of the Demised Premises without further obligation to Tenant or the Trustee, and this Lease shall be cancelled, but Landlord's right to be compensated for damages in such liquidation proceeding shall survive. Section 28.2: In the event a petition for reorganization or adjustment of debts is filed concerning Tenant under Chapter 11 or 13 of the Bankruptcy Code, or a proceeding is filed under Chapter 7 of the Bankruptcy Code and is transferred to Chapter 11 or 13, the Trustee or Tenant as Debtor-in-Possession, must elect to assume this Lease within seventy-five (75) days from the date of the filing of the petition under Chapter 11 or 13, or the Trustee or Debtor-in- Possession shall be deemed to have rejected this Lease. No election by the Trustee or Debtor-in-Possession to assume, whether under Chapter 7, 11 or 13, shall be effective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable in the context of a bankruptcy proceeding of Tenant, have been satisfied, and Landlord has so acknowledged in writing: (i) The Trustee or the Debtor-in-Possession has cured, or has provided Landlord adequate assurance (as defined below) that: (a) Within ten (10) days from the date of such assumption, the Trustee will cure all monetary defaults under this Lease; and (b) Within thirty (30) days from the date of such assumption, the Trustee will cure all nonmonetary defaults under this Lease; and (ii) The Trustee or the Debtor-in-Possession has compensated, or has provided to Landlord adequate assurance (as defined below) that within ten (10) days from the date of assumption Landlord will be compensated for any pecuniary loss incurred by Landlord arising from the default of Tenant, the Trustee, or the Debtor-in-Possession as recited in Landlord's written statement of pecuniary loss sent to the Trustee or Debtor-in-Possession. (iii) The Trustee or the Debtor-in-Possession has provided Landlord with adequate assurance of the future performance of each of Tenant's, Trustee's or Debtor-in-Possession's obligations under this Lease; provided, however, that: (a) 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 (b) To the extent 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 1/12th of Tenant's estimated annual obligations under this Lease for additional rent plus taxes, insurance and similar charges; (c) The obligations imposed upon the Trustee or Debtor-in- Possession shall continue with respect to the Tenant or any assignee of the Lease after the completion of bankruptcy proceedings. Section 28.3: For purposes of this Article, Landlord and Tenant acknowledge that in the context of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance" shall mean: (i) The Trustee or the Debtor-in-Possession has and will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure Landlord that the Trustee or Debtor-in- Possession will have sufficient funds to fulfill the obligations of Tenant under this Lease. (ii) In the event that this Lease is assumed by a Trustee appointed for Tenant or by Tenant as Debtor-in-Possession under the provisions of Section 28.2(ii) hereof and thereafter Tenant is liquidated or files a subsequent petition for reorganization or adjustment of debts under Chapter 11 or 13 of the Bankruptcy Code, then, and in either of such events, Landlord may, at its option, terminate this Lease and all rights of Tenant hereunder, by giving Tenant written notice of its election to so terminate, by no later than thirty (30) days after the occurrence of either of such events. (iii) If the Trustee or Debtor-in-Possession has assumed this Lease pursuant to the terms and provisions of Section 28.1 or 28.2 for the purposes of assigning (or elects to assign) Tenant's interest under this Lease or the estate created thereby, to any other person, such interest or estate may be so assigned only if Landlord shall acknowledge in writing that the intended assignee has provided adequate assurance as defined in this Section 28.3 of future performance of all of the terms, covenants and conditions of this Lease to be performed by Tenant. If for purposes of this Section 28.3 Landlord and Tenant acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance of future performance" shall mean that each of the following conditions has been satisfied, and Landlord has so acknowledged in writing that: (a) The assignee has submitted a current financial statement audited by an independent certified public accountant which shows a net worth and working capital in amounts determined to be reasonably sufficient by Landlord to assure the future performance by such assignee of Tenant's obligations under this Lease; or (b) The assignee, if requested by Landlord, shall have obtained guarantees in form and substance reasonably satisfactory to Landlord from one or more persons who satisfy Landlord's reasonable standards of creditworthiness; and (c) The assignee has submitted in writing evidence, reasonably satisfactory to Landlord, of experience in managing properties of comparable size to the Demised Premises or will have hired a manager, reasonably satisfactory to Landlord, who has a record of successful experience in this area of work. Section 28.4: When, pursuant to the Bankruptcy Code, the Trustee or Debtor-in-Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Demised Premises or any portion thereof, such charges shall not be less than the Fixed Rent and additional rent, as defined in this Lease, and other monetary obligations of Tenant for the payment of operating costs, insurance, and similar charges.