TeleNav 2011 Annual Report Download - page 248

(iii) be bound by any modification of the Lease, or by any previous prepayment of rent or additional rent made more
than one (1) month prior to the date same was due which Tenant might have paid to Landlord, unless such modification or prepayment shall have
been expressly approved in writing by Lender;
(iv) be liable for any security deposited under the Lease unless such security has been physically delivered to Lender
or Successor-Landlord; and
(v) be liable or obligated to comply with or fulfill any of the obligations of Landlord under the Lease or any agreement
relating thereto with respect to the construction of, or payment for, improvements on or above the Premises (or any portion thereof), leasehold
improvements, tenant work letters and/or similar items. Notwithstanding anything to the contrary contained in this Agreement, subject to the
terms of this subparagraph 3(B)(v), Successor-Landlord shall be subject to Tenant’
s right of setoff and deductions from rent as expressly
provided in Section 6.7 of Exhibit B to the Lease as a result of Landlord’
s failure to pay the Allowance (as defined in the Lease) in accordance
with the terms of the Lease (as to Landlord’s failure to pay the Allowance, the “ Tenant’s Right of Setoff for Unpaid Allowance ”);
provided,
however, that Tenant’s Right of Setoff for Unpaid Allowance shall be effective against Successor-
Landlord only if Tenant provides Lender with
written notice of default and opportunity to cure pursuant to the requirements of Section 5 of this Agreement with respect to any failure by
Landlord to pay the Allowance and additionally provided that Tenant delivers to Lender a written estoppel certificate signed by Tenant which is
delivered to Lender (i) on or before November 1, 2011 (the “ First Estoppel ”), and (ii) on or before January 1, 2012 (the “Second Estoppel”
).
Each of the First Estoppel and the Second Estoppel shall consist of Tenant’
s written confirmation, as of the date of such estoppel certificate,
(i) whether Landlord is then in default in payment of the Allowance under the terms of the Lease, (ii) the amount of the Allowance that has been
properly funded in accordance with the terms of the Lease, and (iii) the amount of the Allowance that is remaining to be funded (each, an “
Estoppel ” and collectively, the “ Estoppels ”). Tenant shall be deemed to have waived the Tenant’
s Right of Setoff for Unpaid Allowance with
respect to any portion of the Allowance that the Estoppel confirms has been funded under the Lease. Tenant’
s failure to deliver either of the
Estoppels or written notice of Landlord’
s default in payment of the Allowance in accordance with Section 5 of this Agreement shall result in
Lender’s and/or Successor-Landlord’s not being subject to the Tenant’s Right of Setoff for Unpaid Allowance.
4. INTENTIONALLY DELETED.
5. (A) Tenant shall promptly send Lender copies of any written notices of default delivered by Tenant to Landlord under the Lease.
(B) In the event of a default by Landlord under the Lease which would give Tenant the right, immediately or after the lapse of a
period of time, to cancel or terminate the Lease or to claim a partial or total eviction, or in the event of any other act or omission of Landlord
which would give Tenant the right to cancel or terminate the Lease, Tenant shall not exercise such right (i) until Tenant has given written notice
of such default, act or omission to Lender, and (ii) unless Lender has failed, within forty-
five (45) days after Lender receives such notice, to cure
or remedy the default, act or omission or, if such default, act or omission shall be one which is not reasonably capable of being remedied by
Lender within such forty-
five (45) day period, until a reasonable period for remedying such default, act or omission shall have elapsed following
the giving of such notice and following the time when Lender shall have become entitled under the Security Instrument to remedy the same
(which reasonable period shall in no event be less than the period to which Landlord would be entitled under the Lease or otherwise, after similar
notice, to effect such remedy, and in no event longer than one hundred twenty (120) days from the date when Lender receives Tenant’
s written
notice of Landlord’
s default), provided that Lender shall with due diligence give Tenant written notice of its intention to, and shall thereafter
diligently commence and continue to, remedy such default, act or omission. If Lender cannot reasonably remedy a default, act or omission of
Landlord until after Lender obtains possession of the Premises, Tenant may not terminate or cancel the Lease or claim a partial or total eviction
by reason of such default, act or omission until the expiration of a reasonable period necessary for the remedy; provided, however, that if entry
onto the Premises is required to cure such default, such reasonable period will include such time as is reasonably necessary for Lender to gain
such entry, using due diligence. To the extent Lender incurs any expenses or other costs in curing or remedying such default, act or omission,
including, without limitation, attorneys’ fees and disbursements, Lender shall be subrogated to Tenant’s rights against Landlord.
(C) Notwithstanding the foregoing, Lender shall have no obligation hereunder to remedy such default, act or omission.
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