CONSENT, ELECT TO TREAT THE LEASEHOLD ENCUMBERED BY THE MORTGAGE AS TERMINATED
UNDER 11 U.S.C. § 365(H)(1).
ANY SUCH ELECTION MADE WITHOUT LENDER'S PRIOR
WRITTEN CONSENT SHALL BE NULL AND VOID AND, AT LENDER'S ELECTION, SHALL
CONSTITUTE A SUBSTANTIAL AND MATERIAL DEFAULT HEREUNDER.
SECTION 16.5
BORROWER HEREBY UNCONDITIONALLY ASSIGNS, TRANSFERS AND
SETS OVER TO LENDER ALL OF BORROWER'S RESPECTIVE RIGHT, TITLE AND INTEREST IN
AND TO ANY CLAIM FOR THE PAYMENT OF DAMAGES ARISING FROM ANY REJECTION OF THE
GROUND LEASE UNDER THE BANKRUPTCY CODE (11 U.S.C. § 101 ET SEQ.) (THE
"BANKRUPTCY CODE").
LENDER SHALL HAVE THE RIGHT TO PROCEED IN ITS OWN NAME OR
IN THE NAME OF BORROWER (FOR WHICH PURPOSE BORROWER HEREBY APPOINTS LENDER AS
ITS ATTORNEY-IN-FACT, WHICH APPOINTMENT SHALL BE COUPLED WITH AN INTEREST AND
IRREVOCABLE) IN RESPECT OF ANY CLAIM, SUIT, ACTION OR PROCEEDING RELATING TO THE
REJECTION OF SUCH LEASEHOLD 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 CONCERNING THE
LESSOR OF SUCH LEASEHOLD UNDER THE BANKRUPTCY CODE.
THIS ASSIGNMENT CONSTITUTES
A PRESENT, IRREVOCABLE AND UNCONDITIONAL ASSIGNMENT AND SHALL CONTINUE IN EFFECT
UNTIL ALL OF THE INDEBTEDNESS AND OBLIGATIONS SECURED HEREBY SHALL HAVE BEEN
SATISFIED AND DISCHARGED IN FULL.
ANY AMOUNTS RECEIVED BY LENDER AS DAMAGES
ARISING OUT OF THE REJECTION OF SUCH LEASEHOLD SHALL BE APPLIED FIRST
26
TO ALL COSTS AND EXPENSES OF LENDER (INCLUDING, WITHOUT LIMITATION, ACTUAL
OUT-OF-POCKET ATTORNEYS' FEES (INCLUDING ON APPEAL)) INCURRED IN CONNECTION WITH
THE EXERCISE OF ANY OF ITS RIGHTS OR REMEDIES UNDER THIS SUBSECTION, AND THEN IN
ACCORDANCE WITH SECTION 2(C) HEREOF.
SECTION 16.6
IF PURSUANT TO 11 U.S.C. § 365(H)(1) BORROWER SEEKS TO
OFFSET AGAINST RENT RESERVED UNDER THE GROUND LEASE, THE AMOUNT OF ANY DAMAGES
CAUSED BY THE NON-PERFORMANCE BY THE LESSOR OF THE GROUND LEASE OF ANY OF SUCH
LESSOR'S OBLIGATIONS UNDER THE GROUND LEASE AFTER THE REJECTION BY SUCH LESSOR
OF SUCH LEASEHOLD UNDER THE BANKRUPTCY CODE, BORROWER SHALL, PRIOR TO EFFECTING
SUCH OFFSET, NOTIFY LENDER OF ITS INTENT SO TO DO, SETTING FORTH THE AMOUNTS
PROPOSED TO BE SO OFFSET AND THE BASIS THEREFOR.
LENDER SHALL HAVE THE RIGHT TO
OBJECT TO ALL OR ANY PART OF SUCH OFFSET, AND IN THE EVENT OF SUCH OBJECTION
BORROWER SHALL NOT EFFECT ANY OFFSET OF THE AMOUNTS SO OBJECTED TO BY LENDER.
NEITHER LENDER'S FAILURE TO OBJECT AS AFORESAID NOR ANY OBJECTION OR OTHER
COMMUNICATION BETWEEN LENDER AND BORROWER RELATING TO SUCH OFFSET SHALL
CONSTITUTE AN APPROVAL OF ANY SUCH OFFSET BY LENDER.
BORROWER SHALL INDEMNIFY
AND SAVE LENDER HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, ACTIONS,
SUITS, PROCEEDINGS, DAMAGES, LOSSES, COSTS AND EXPENSES OF EVERY NATURE
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ACTUAL OUT-OF-POCKET ATTORNEYS' FEES
(INCLUDING ON APPEAL)) ARISING FROM OR RELATING TO ANY OFFSET BY BORROWER
AGAINST THE RENT RESERVED IN THE GROUND LEASE.
SECTION 16.7
IF ANY ACTION, PROCEEDING, MOTION OR NOTICE SHALL BE
COMMENCED OR FILED