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201203312
<br />interchangeably in singular or plural form and the word "Grantor" shall mean "each Grantor or
<br />any subsequent owner or owners of the Trust Property or any part thereof or interest therein," the
<br />word "Beneficiary" shall mean `Beneficiary or any successor Indenture Trustee under the
<br />Indenture," the word "Trustee" shall mean "Trustee and any successor hereunder," the word
<br />"person" shall include any individual, corporation, partnership, trust, unincorporated association,
<br />government, governmental authority, or other entity, and the words "Trust Property" shall
<br />include any portion of the Trust Property or interest therein. Whenever the context may require,
<br />any pronouns used herein shall include the corresponding masculine, feminine or neuter forms,
<br />and the singular form of nouns and pronouns shall include the plural and vice versa. The
<br />captions in this Deed of Trust are for convenience or reference only and in no way limit or
<br />amplify the provisions hereof.
<br />28. Occupancy ereement Provisions.
<br />(a) Grantor covenants and agrees that the fee title to the Occupied Land and the
<br />leasehold estate created under any Occupancy Agreement shall not merge but shall always
<br />remain separate and distinct, notwithstanding the union of said estates either in Grantor or a
<br />third party by purchase or otherwise; and in case Grantor acquires the fee title, an easement
<br />interest, or any other estate, title or interest in and to the Occupied Land, the lien of this Deed
<br />of Trust shall, without further conveyance, simultaneously with such acquisition, be spread to
<br />cover and attach to such acquired estate and as so spread and attached shall be prior to the lien
<br />of any deed of trust placed on the acquired estate after the date of this Deed of Trust.
<br />(b) (i) The lien of this Deed of Trust shall attach to all of Grantor's rights and remedies
<br />at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, 11 U.S.C.
<br />§ 365(h), as the same may hereafter be amended (the `Bankruptcv Code'), including, without
<br />limitation, all of Grantor's rights to remain in possession of the Occupied Land. If an Event of
<br />Default shall have occurred and be continuing, Grantor shall not, without Beneficiary's prior
<br />written consent, elect to treat any Occupancy Agreement, if any, as terminated under
<br />Subsection 365(h)(1)(A)(i) of the Bankruptcy Code. Any such election made without
<br />Beneficiary's consent shall be void.
<br />(ii) If an Event of Default shall have occurred and be continuing, Beneficiary
<br />shall have the right to proceed in its own name or in the name of Grantor in respect of
<br />any claim, suit, action or proceeding relating to the rejection of any Occupancy
<br />Agreement by the lessor or any other party, including, without limitation, the right to file
<br />and prosecute under the Bankruptcy Code, without joining or the joinder of Grantor, any
<br />proofs of claim, complaints, motions, applications, notices and other documents. Any
<br />amounts received by Beneficiary as damages arising out of the rejection of any
<br />Occupancy Agreement as aforesaid shall be applied fust to all costs and expenses of
<br />Beneficiary (including, but not limited to, reasonable attorneys' fees) incurred in
<br />connection with the exercise of any of its rights or remedies under this paragraph and
<br />thereafter in accordance with the Indenture. Grantor acknowledges that the assignment
<br />of all claims and rights to the payment of damages from the rejection of any Occupancy
<br />Agreement made under the granting clauses of this Deed of Trust constitutes a present
<br />irreversible and unconditional assignment and Grantor shall, at the request of
<br />Beneficiary, promptly make, execute, acknowledge and deliver, in form and substance
<br />
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