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 OR AT ANY TIME AFTER 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
5
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 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 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 THE NOTICE SHALL HAVE BEEN
GIVEN, SUBJECT TO THE APPROVAL OF THE BANKRUPTCY COURT HAVING JURISDICTION OVER
THE CASE AND 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 AFTER AN EVENT OF
DEFAULT OR FROM ANY OTHER ACT OR OMISSION OF LENDER IN MANAGING THE PROPERTY
AFTER AN EVENT OF DEFAULT UNLESS SUCH LOSS IS CAUSED BY THE WILLFUL MISCONDUCT
AND BAD FAITH OF LENDER.
LENDER SHALL NOT BE