DETERMINE TO REJECT SUCH LEASE PURSUANT TO SECTION 365(A) OF THE BANKRUPTCY
CODE, THEN 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 LEASE.
LENDER SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO
SERVE UPON BORROWER WITHIN SUCH TEN (10) DAY PERIOD A NOTICE STATING THAT
(I) LENDER DEMANDS THAT BORROWER ASSUME AND ASSIGN THE LEASE TO LENDER PURSUANT
TO SECTION 365 OF THE BANKRUPTCY CODE, AND (II) LENDER COVENANTS TO CURE OR
PROVIDE ADEQUATE ASSURANCE OF FUTURE PERFORMANCE UNDER THE LEASE.
IF LENDER
SERVES UPON BORROWER THE NOTICE DESCRIBED IN THE PRECEDING SENTENCE, BORROWER
SHALL NOT SEEK TO REJECT THE LEASE AND SHALL COMPLY WITH THE DEMAND PROVIDED FOR
IN CLAUSE (I) OF THE PRECEDING SENTENCE WITHIN THIRTY (30) DAYS AFTER LENDER'S
NOTICE SHALL HAVE BEEN GIVEN, SUBJECT TO THE PERFORMANCE BY LENDER OF THE
COVENANT PROVIDED FOR IN CLAUSE (II) OF THE PRECEDING SENTENCE.
ARTICLE 4
NO LIABILITY, FURTHER ASSURANCES
SECTION 4.1
NO LIABILITY OF LENDER.
THIS ASSIGNMENT SHALL NOT BE
CONSTRUED TO BIND LENDER TO THE PERFORMANCE OF ANY OF THE COVENANTS, CONDITIONS
OR PROVISIONS CONTAINED IN ANY LEASE OR LEASE GUARANTY OR OTHERWISE IMPOSE ANY
OBLIGATION UPON LENDER.
LENDER SHALL NOT BE LIABLE FOR ANY LOSS SUSTAINED BY
BORROWER RESULTING FROM LENDER'S FAILURE TO LET THE PROPERTY DURING THE
CONTINUANCE OF AN EVENT OF DEFAULT OR FROM ANY OTHER ACT OR OMISSION OF LENDER
IN MANAGING THE PROPERTY DURING THE CONTINUANCE OF AN EVENT OF DEFAULT UNLESS
SUCH LOSS IS CAUSED BY THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BAD FAITH OF
LENDER OR ITS AGENTS, EMPLOYEES OR AFFILIATES.
LENDER SHALL NOT BE OBLIGATED TO
PERFORM OR DISCHARGE ANY OBLIGATION, DUTY OR LIABILITY UNDER THE LEASES OR ANY
LEASE GUARANTIES OR UNDER OR BY REASON OF THIS ASSIGNMENT AND BORROWER SHALL
INDEMNIFY LENDER FOR, AND HOLD LENDER HARMLESS, PRIOR TO THE TIME THAT LENDER OR
ITS AFFILIATE OR DESIGNEE SHALL BECOME THE OWNER OF THE PROPERTY, FROM, (A) ANY
AND ALL LIABILITY, LOSS OR DAMAGE (EXCLUDING CONSEQUENTIAL OR PUNITIVE DAMAGES)
WHICH MAY OR MIGHT BE INCURRED UNDER THE LEASES, ANY LEASE GUARANTIES OR UNDER
OR BY REASON OF THIS ASSIGNMENT, AND (B) ANY AND ALL CLAIMS AND DEMANDS
WHATSOEVER, INCLUDING THE DEFENSE OF ANY SUCH CLAIMS OR DEMANDS WHICH MAY BE
ASSERTED AGAINST LENDER BY REASON OF ANY ALLEGED OBLIGATIONS AND UNDERTAKINGS ON
ITS PART TO PERFORM OR DISCHARGE ANY OF THE TERMS, COVENANTS OR AGREEMENTS
CONTAINED IN THE LEASES OR ANY LEASE GUARANTIES, UNLESS CAUSED BY THE GROSS
NEGLIGENCE, WILLFUL MISCONDUCT OR BAD FAITH OF LENDER OR ITS AGENTS, EMPLOYEES
OR AFFILIATES.
SHOULD LENDER INCUR ANY SUCH LIABILITY, THE AMOUNT THEREOF,
INCLUDING COSTS, EXPENSES AND REASONABLE ATTORNEYS' FEES AND COSTS, SHALL BE
SECURED BY THIS ASSIGNMENT AND BY THE MORTGAGE AND THE OTHER LOAN DOCUMENTS AND
BORROWER SHALL REIMBURSE LENDER THEREFOR IMMEDIATELY UPON DEMAND AND UPON THE
FAILURE OF
6
Borrower so to do