IN RESPECT OF BORROWER OR THE MORTGAGED PROPERTY IN
CONNECTION WITH ANY CASE UNDER THE BANKRUPTCY CODE (OTHER THAN THOSE ACTIONS OR
PROCEEDINGS UNDER THE BANKRUPTCY CODE COMMENCED OR FILED WITH RESPECT TO THE FEE
ESTATE OF THE PREMISES SO LONG AS BORROWER'S LEASEHOLD INTEREST IN THE MORTGAGED
PREMISES IS NOT NEGATIVELY IMPACTED BY SUCH ACTIONS OR PROCEEDINGS), LENDER
SHALL HAVE THE OPTION, TO THE EXCLUSION OF BORROWER, EXERCISABLE UPON NOTICE
FROM LENDER TO BORROWER, TO CONDUCT AND CONTROL ANY SUCH LITIGATION WITH COUNSEL
OF LENDER'S CHOICE.
LENDER MAY PROCEED IN ITS OWN NAME OR IN THE NAME OF
BORROWER IN CONNECTION WITH ANY SUCH LITIGATION (FOR WHICH PURPOSE BORROWER
HEREBY APPOINTS LENDER AS ITS ATTORNEY-IN-FACT, WHICH APPOINTMENT SHALL BE
COUPLED WITH AN INTEREST AND IRREVOCABLE), AND BORROWER AGREES TO EXECUTE ANY
AND ALL POWERS, AUTHORIZATIONS, CONSENTS AND OTHER DOCUMENTS REQUIRED BY LENDER
IN CONNECTION THEREWITH.
BORROWER SHALL, UPON DEMAND, PAY TO LENDER ALL COSTS
AND EXPENSES (INCLUDING ACTUAL OUT-OF-POCKET ATTORNEYS' FEES) PAID OR INCURRED
BY LENDER IN CONNECTION WITH THE PROSECUTION OR CONDUCT OF ANY SUCH
PROCEEDINGS.
ANY SUCH COSTS OR EXPENSES NOT PAID BY BORROWER AS AFORESAID SHALL
BE SECURED BY THE LIEN OF THE MORTGAGE AND SHALL BE ADDED TO THE PRINCIPAL
AMOUNT OF THE INDEBTEDNESS SECURED HEREBY.
WITHOUT THE PRIOR WRITTEN CONSENT OF
LENDER, BORROWER SHALL NOT IN ANY SUCH CASE UNDER THE BANKRUPTCY CODE COMMENCE
ANY ACTION, SUIT, PROCEEDING OR CASE, OR FILE ANY APPLICATION OR MAKE ANY
MOTION, IN RESPECT OF THE LEASEHOLD ENCUMBERED BY THE MORTGAGE.
SECTION 16.8
BORROWER SHALL PROMPTLY AFTER OBTAINING KNOWLEDGE THEREOF
NOTIFY LENDER OF ANY FILING BY OR AGAINST THE LESSOR OF THE LEASEHOLD ENCUMBERED
BY THE MORTGAGE OF A PETITION UNDER THE BANKRUPTCY CODE.
BORROWER SHALL
THEREAFTER FORTHWITH DELIVER TO LENDER COPIES OF ANY NOTICES, SUMMONSES,
PLEADINGS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH PETITION AND ANY
PROCEEDINGS RELATING THERETO.
SECTION 16.9
IF THERE SHALL BE FILED BY OR AGAINST BORROWER A PETITION
UNDER THE BANKRUPTCY CODE, AND BORROWER SHALL DETERMINE TO REJECT ITS LEASEHOLD
INTEREST PURSUANT TO
27
SECTION 365(A) OF THE BANKRUPTCY CODE, BORROWER SHALL GIVE LENDER NOT LESS THAN
TEN (10) DAYS' PRIOR NOTICE OF THE DATE ON WHICH BORROWER SHALL APPLY TO THE
BANKRUPTCY COURT FOR AUTHORITY TO REJECT SUCH LEASEHOLD.
LENDER SHALL HAVE THE
RIGHT, BUT NOT THE OBLIGATION, TO SERVE UPON BORROWER WITHIN SUCH TEN-DAY PERIOD
A NOTICE STATING THAT: (I) LENDER DEMANDS THAT BORROWER ASSUME AND ASSIGN SUCH
LEASEHOLD AND THE GROUND LEASE TO LENDER PURSUANT TO SECTION 365 OF THE
BANKRUPTCY CODE; AND (II) LENDER COVENANTS TO CURE OR PROVIDE ADEQUATE ASSURANCE
OF PROMPT CURE OF ALL DEFAULTS AND PROVIDE ADEQUATE ASSURANCE OF FUTURE
PERFORMANCE UNDER THE GROUND LEASE.
IF LENDER SERVES UPON BORROWER THE NOTICE
DESCRIBED IN THE PRECEDING SENTENCE, BORROWER SHALL NOT SEEK TO REJECT THE
LEASEHOLD AND SHALL COMPLY WITH THE DEMAND PROVIDED FOR IN CLAUSE (I) OF THE
PRECEDING SENTENCE WITHIN THIRTY (30) DAYS AFTER THE NOTICE SHALL HAVE BEEN
GIVEN, SUBJECT TO THE