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<br /> subject to the performance by Lender of the covenant provided for in clause (ii) of the preceding
<br /> sentence.
<br /> ARTICLE 4 - NO LIABILITY,FURTHER ASSURANCES
<br /> Section 4.1 No Liability of Lender. This Assignment shall not be construed
<br /> to bind Lender to the performance of any of the covenants, conditions or provisions contained in
<br /> any Lease or Lease Guaranty or otherwise impose any obligation upon Lender. Lender shall not
<br /> be liable for any loss sustained by Borrower resulting from Lender's failure to let the Property
<br /> after an Event of Default or from any other act or omission of Lender in managing the Property
<br /> after an Event of Default unless such loss is caused by the willful misconduct or bad faith of
<br /> Lender. Lender shall not be obligated to perform or discharge any obligation, duty or liability
<br /> under the Leases or any Lease Guaranties or under or by reason of this Assignment and
<br /> Borrower shall, and hereby agrees to, indemnify Lender for, and to hold Lender harmless from,
<br /> any and all liability, loss or damage which may or might be incurred under the Leases, any Lease
<br /> Guaranties or under or by reason of this Assignment and from any and all claims and demands
<br /> whatsoever, including the defense of any such claims or demands which may be asserted against
<br /> Lender by reason of any alleged obligations and undertakings on its part to perform or discharge
<br /> any of the terms, covenants or agreements contained in the Leases or any Lease Guaranties.
<br /> Should Lender incur any such liability, the amount thereof, including costs, expenses and
<br /> reasonable attorneys' fees, shall be secured by this Assignment and the other Loan Documents
<br /> and Borrower shall reimburse Lender therefor immediately upon demand and upon the failure of
<br /> Borrower so to do Lender may, at its option, declare all sums secured by this Assignment and the
<br /> other Loan Documents immediately due and payable. This Assignment shall not operate to place
<br /> any obligation or liability for the control, care, management or repair of the Property upon
<br /> Lender, nor for the carrying out of any of the terms and conditions of the Leases or any Lease
<br /> Guaranties; nor shall it operate to make Lender responsible or liable for any waste committed on
<br /> the Property by the tenants or any other parties, or for any dangerous or defective condition of
<br /> the Property including, without limitation, the presence of any Hazardous Substances (as defined
<br /> in the Environmental Indemnity), or for any negligence in the management, upkeep, repair or
<br /> control of the Property resulting in loss or injury or death to any tenant, licensee, employee or
<br /> stranger.
<br /> Section 4.2 No Mortgagee in Possession. Nothing herein contained shall be
<br /> construed as constituting Lender a "mortgagee in possession" in the absence of the taking of
<br /> actual possession of the Property by Lender. In the exercise of the powers herein granted
<br /> Lender, no liability shall be asserted or enforced against Lender, all such liability being expressly
<br /> waived and released by Borrower.
<br /> Section 4.3 Further Assurances. Borrower will, at the cost of Borrower, and
<br /> without expense to Lender, do, execute, acknowledge and deliver all further acts, conveyances,
<br /> assignments, notices of assignments, transfers and assurances as Lender shall, from time to time,
<br /> require for the better assuring, conveying, assigning, transferring and confirming unto Lender the
<br /> property and rights hereby assigned or intended now or hereafter so to be, or which Borrower
<br /> may be or may hereafter become bound to convey or assign to Lender, or for carrying out the
<br /> intention or facilitating the performance of the terms of this Assignment or for filing, registering
<br /> or recording this Assignment and, on demand, will execute and deliver and hereby authorizes
<br /> -6-
<br /> 79582.000016 EMF US 44361557v1
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