CODE.
BORROWER SHALL NOTIFY LENDER PROMPTLY (AND IN ANY EVENT WITHIN TEN (10) DAYS) OF
ANY CLAIM, SUIT, ACTION OR PROCEEDING RELATING TO THE REJECTION OF THE GROUND
LEASE.
LENDER IS HEREBY IRREVOCABLY APPOINTED AS BORROWER'S ATTORNEY-IN-FACT,
COUPLED WITH AN INTEREST, WITH EXCLUSIVE POWER 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 GROUND LESSOR UNDER
THE BANKRUPTCY CODE DURING THE CONTINUANCE OF AN EVENT OF DEFAULT.
BORROWER MAY
MAKE ANY COMPROMISE OR SETTLEMENT IN CONNECTION WITH SUCH PROCEEDINGS (SUBJECT
TO LENDER'S REASONABLE APPROVAL); PROVIDED, HOWEVER, THAT LENDER SHALL BE
AUTHORIZED AND ENTITLED TO COMPROMISE OR SETTLE ANY SUCH PROCEEDING IF SUCH
COMPROMISE OR SETTLEMENT IS MADE AFTER THE OCCURRENCE AND DURING THE CONTINUANCE
OF AN EVENT OF DEFAULT.
BORROWER SHALL PROMPTLY EXECUTE AND DELIVER TO LENDER
ANY AND ALL INSTRUMENTS REASONABLY REQUIRED IN CONNECTION WITH ANY SUCH
PROCEEDING AFTER REQUEST THEREFOR BY LENDER.
EXCEPT AS SET FORTH ABOVE,
BORROWER SHALL NOT, NOR PERMIT OWNER TO, ADJUST, COMPROMISE, SETTLE OR ENTER
INTO ANY AGREEMENT WITH RESPECT TO SUCH PROCEEDINGS WITHOUT THE PRIOR WRITTEN
CONSENT OF LENDER, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED.
(F)
BORROWER SHALL NOT PERMIT OWNER TO, WITHOUT LENDER'S PRIOR
WRITTEN CONSENT, ELECT TO TREAT THE GROUND LEASE AS TERMINATED UNDER SECTION
365(H)(1) OF THE BANKRUPTCY CODE.
ANY SUCH ELECTION MADE WITHOUT LENDER'S PRIOR
WRITTEN CONSENT SHALL BE VOID.
(G)
IF PURSUANT TO SECTION 365(H)(2) OF THE BANKRUPTCY CODE, OWNER
SEEKS TO OFFSET AGAINST THE RENT RESERVED IN THE GROUND LEASE THE AMOUNT OF ANY
DAMAGES CAUSED BY THE NON-
33
PERFORMANCE BY THE GROUND LESSOR OF ANY OF THE GROUND LESSOR'S OBLIGATIONS UNDER
THE GROUND LEASE AFTER THE REJECTION BY THE GROUND LESSOR OF THE GROUND LEASE
UNDER THE BANKRUPTCY CODE, BORROWER SHALL, PRIOR TO OWNER EFFECTING SUCH OFFSET,
NOTIFY LENDER OF ITS INTENTION TO DO SO, SETTING FORTH THE AMOUNTS PROPOSED TO
BE SO OFFSET AND THE BASIS THEREFOR.
IF LENDER HAS FAILED TO OBJECT AS
AFORESAID WITHIN TEN (10) DAYS AFTER NOTICE FROM BORROWER IN ACCORDANCE WITH THE
FIRST SENTENCE OF THIS SECTION 2.35(G), BORROWER MAY PERMIT OWNER TO PROCEED TO
EFFECT SUCH OFFSET IN THE AMOUNTS SET FORTH IN BORROWER'S NOTICE.
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, REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS) ARISING FROM
OR RELATING TO ANY SUCH OFFSET BY OWNER AGAINST THE RENT RESERVED IN THE GROUND
LEASE.
(H)
BORROWER SHALL IMMEDIATELY, AFTER OBTAINING KNOWLEDGE THEREOF,
NOTIFY LENDER OF ANY FILING BY OR AGAINST THE GROUND LESSOR OF A PETITION UNDER
THE BANKRUPTCY CODE.
BORROWER SHALL THEREAFTER FORTHWITH GIVE WRITTEN NOTICE OF
SUCH FILING TO