GRANTED TO LENDER IN SECTION 3.1 OF THIS ASSIGNMENT AND THE COLLECTION OF THE
RENTS AND SUMS DUE UNDER THE LEASE GUARANTIES AND THE APPLICATION THEREOF AS
HEREIN PROVIDED SHALL NOT BE CONSIDERED A WAIVER OF ANY DEFAULT BY BORROWER
UNDER THE NOTE, THE LOAN AGREEMENT, THE LEASES, THIS ASSIGNMENT OR THE OTHER
LOAN DOCUMENTS.
THE FAILURE OF LENDER TO INSIST UPON STRICT PERFORMANCE OF ANY
TERM HEREOF SHALL NOT BE DEEMED TO BE A WAIVER OF ANY TERM OF THIS ASSIGNMENT.
BORROWER SHALL NOT BE RELIEVED OF BORROWER'S OBLIGATIONS HEREUNDER BY REASON OF
(A) THE FAILURE OF LENDER TO COMPLY WITH ANY REQUEST OF BORROWER OR ANY OTHER
PARTY TO TAKE ANY ACTION TO ENFORCE ANY OF THE PROVISIONS HEREOF OR OF THE LOAN
AGREEMENT, THE NOTE OR THE OTHER LOAN DOCUMENTS, (B) THE RELEASE REGARDLESS OF
CONSIDERATION, OF THE WHOLE OR ANY PART OF THE PROPERTY, OR (C) ANY AGREEMENT OR
STIPULATION BY LENDER EXTENDING THE TIME OF PAYMENT OR OTHERWISE MODIFYING OR
SUPPLEMENTING THE TERMS OF THIS ASSIGNMENT, THE LOAN AGREEMENT, THE NOTE, OR THE
OTHER LOAN DOCUMENTS.
LENDER MAY RESORT FOR THE PAYMENT OF THE DEBT TO ANY
OTHER SECURITY HELD BY LENDER IN SUCH ORDER AND MANNER AS LENDER, IN ITS
DISCRETION, MAY ELECT.
LENDER MAY TAKE ANY ACTION TO RECOVER THE DEBT, OR ANY
PORTION THEREOF, OR TO ENFORCE ANY COVENANT HEREOF WITHOUT PREJUDICE TO THE
RIGHT OF LENDER THEREAFTER TO ENFORCE ITS RIGHTS UNDER THIS ASSIGNMENT.
THE
RIGHTS OF LENDER UNDER THIS ASSIGNMENT SHALL BE SEPARATE, DISTINCT AND
CUMULATIVE AND NONE SHALL BE GIVEN EFFECT TO THE EXCLUSION OF THE OTHERS.
NO
ACT OF LENDER SHALL BE CONSTRUED AS AN ELECTION TO PROCEED UNDER ANY ONE
PROVISION HEREIN TO THE EXCLUSION OF ANY OTHER PROVISION.
SECTION 3.5.
BANKRUPTCY.
(A)
UPON THE OCCURRENCE OF AN EVENT OF
DEFAULT, LENDER SHALL HAVE THE RIGHT TO PROCEED IN ITS OWN NAME OR IN THE NAME
OF BORROWER IN RESPECT OF ANY CLAIM, SUIT, ACTION OR PROCEEDING RELATING TO THE
REJECTION OF ANY LEASE, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO FILE AND
PROSECUTE, TO THE EXCLUSION OF BORROWER, ANY PROOFS OF CLAIM, COMPLAINTS,
MOTIONS, APPLICATIONS, NOTICES AND OTHER DOCUMENTS, IN ANY CASE IN RESPECT OF
THE LESSEE UNDER SUCH LEASE UNDER THE BANKRUPTCY CODE.
(B)
IF THERE SHALL BE FILED BY OR AGAINST BORROWER A PETITION UNDER
THE BANKRUPTCY CODE, AND BORROWER, AS LESSOR UNDER ANY LEASE, SHALL 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
5
COURT FOR AUTHORITY TO REJECT THE LEASE.
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 THE LEASE TO
LENDER PURSUANT TO SECTION 365 OF THE BANKRUPTCY CODE AND (II) LENDER COVENANTS
TO CURE OR PROVIDE ADEQUATE ASSURANCE OF FUTURE