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<br /> person or by agent, nominee or attorney, with or without bringing any action or proceeding, or
<br /> by a receiver appointed by a court, dispossess Borrower and its agents and servants from the
<br /> Property, without liability for trespass, damages or otherwise (other than arising as a direct result
<br /> of Lender's gross negligence or willful misconduct) and exclude Borrower and its agents or
<br /> servants wholly therefrom, and take possession of the Property and all books, records and
<br /> accounts relating thereto and have, hold, manage, lease and operate the Property on such terms
<br /> and for such period of time as Lender may deem proper and either with or without taking
<br /> possession of the Property in its own name, demand, sue for or otherwise collect and receive all
<br /> Rents and sums due under all Lease Guaranties, including those past due and unpaid with full
<br /> power to make from time to time all alterations, renovations, repairs or replacements thereto or
<br /> thereof as Lender may deem proper and may apply the Rents and sums received pursuant to any
<br /> Lease Guaranties to the payment of the following in such order and proportion as Lender in its
<br /> sole discretion may determine, any law, custom or use to the contrary notwithstanding: (a) all
<br /> expenses of managing and securing the Property, including, without being limited thereto, the
<br /> salaries, fees and wages of a managing agent and such other employees or agents as Lender may
<br /> deem necessary or desirable and all expenses of operating and maintaining the Property,
<br /> including, without being limited thereto, all taxes, charges, claims, assessments, water charges,
<br /> sewer rents and any other liens, and premiums for all insurance which Lender may deem
<br /> necessary or desirable, and the cost of all alterations, renovations, repairs or replacements, and
<br /> all expenses incident to taking and retaining possession of the Property; and (b) the Debt,
<br /> together with all costs and reasonable attorneys' fees. In addition, upon the occurrence and
<br /> during the continuance of an Event of Default, Lender, at its option, may (i) complete any
<br /> construction on the Property in such manner and form as Lender deems advisable, (ii) exercise
<br /> all rights and powers of Borrower, including, without limitation, the right to negotiate, execute,
<br /> cancel, enforce or modify any Leases, obtain and evict tenants, and demand, sue for, collect and
<br /> receive all Rents from the Property and all sums due under any Lease Guaranties, (iii) require
<br /> Borrower to pay monthly in advance to Lender, or any receiver appointed to collect the Rents,
<br /> the fair and reasonable rental value for the use and occupancy of such part of the Property as may
<br /> be in possession of Borrower or (iv) require Borrower to vacate and surrender possession of the
<br /> Property to Lender or to such receiver and, in default thereof, Borrower may be evicted by
<br /> summary proceedings or otherwise.
<br /> Section 3.2 Other Remedies. Nothing contained in this Assignment and no
<br /> act done or omitted by Lender pursuant to the power and rights granted to Lender hereunder shall
<br /> be deemed to be a waiver by Lender of its rights and remedies under the Loan Agreement, the
<br /> Note, or the other Loan Documents and this Assignment is made and accepted without prejudice
<br /> to any of the rights and remedies possessed by Lender under the terms thereof. The right of
<br /> Lender to collect the Debt and to enforce any other security therefor held by it may be exercised
<br /> by Lender either prior to, simultaneously with, or subsequent to any action taken by it hereunder.
<br /> Borrower hereby absolutely, unconditionally and irrevocably waives any and all rights to assert
<br /> any setoff, counterclaim or crossclaim of any nature whatsoever with respect to the obligations
<br /> of Borrower under this Assignment, the Loan Agreement, the Note, the other Loan Documents
<br /> or otherwise with respect to the Loan in any action or proceeding brought by Lender to collect
<br /> same, or any portion thereof, or to enforce and realize upon the lien and security interest created
<br /> by this Assignment, the Loan Agreement, the Note, or any of the other Loan Documents
<br /> (provided, however, that the foregoing shall not be deemed a waiver of Borrower's right to assert
<br /> any compulsory counterclaim if such counterclaim is compelled under local law or rule of
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<br /> 79582.000016 EMF_US 44361557v1
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