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2CY0100-1,12
<br />Site Lease shall not merge but shall always be kept separate and distinct, notwithstanding the union of such estates
<br />in Trustor, the owner, or in any other person by purchase, operation of law or otherwise. Beneficiary reserves the
<br />right, at any time, to release portions of the Subject Property, including, but not limited to, the leasehold estate
<br />created by the Site Lease, with or without consideration, at Beneficiary's election, without waiving or affecting any
<br />of its rights hereunder or under the Loan Documents and any such release shall not affect Beneficiary's rights in
<br />connection with the portion of the Subject Property not so released.
<br />(d) So long as any portion of the Obligations remains unpaid, if Trustor shall become the
<br />owner and holder of the fee title to the Land, the lien of this Deed of Trust shall be spread to cover Trustor's fee title
<br />to the Land and said fee title shall be deemed to be included in the Subject Property. Trustor agrees to execute any
<br />and all documents or instruments necessary to subject its fee title to the Land to the lien of this DeeAof Trust, in
<br />form and substance satisfactory io Beneficiary.
<br />(e) Trustor hereby unconditionally assigns, transfers and sets over to Beneficiary all of
<br />Trustor's claims and rights to the payment of damages arising from any rejection by the owner of the Site Lease
<br />under the Bankruptcy Code. Beneficiary shall have the right to proceed in its own name or in the name of Trustor
<br />in respect of any claim, suit, action or proceeding relating to the rejection of the Site Lease, including, without
<br />limitation, the right to file and prosecute, to the exclusion of Trustor, any proofs of claim, complaints, motions,
<br />applications, notices and other documents, in any case in respect of the owner under the Bankruptcy Code. This
<br />assignment constitutes a present, irrevocable and unconditional assignment of the foregoing claims, rights and
<br />remedies, and shall continue in effect until all of the Obligations shall have been satisfied and discharged in full.
<br />Any amounts received by Beneficiary as damages arising out of the rejection of the Site Lease as aforesaid shall be
<br />applied first to all costs and expenses of Beneficiary (including, without limitation, attorneys' fees and
<br />disbursements) incurred in connection with the exercise of any of its rights or remedies under this Section 2.15(e).
<br />M Trustor shall not, without Beneficiary's prior written consent, elect to treat the Site Lease
<br />as terminated under Section 365(h)W of the Bankruptcy Code. Any such election made without Beneficiary's prior
<br />written consent shall be void.
<br />(g) If pursuant to Section 365(h)(1) of the Bankruptcy Code, Trustor seeks to offset against
<br />the Rent reserved in the Site Lease the amount of any damages caused by the non - performance by the owner of any
<br />of the owner's obligations under the Site Lease after the rejection by the owner of the Site Lease under the
<br />Bankruptcy Code, Trustor shall, prior to effecting such offset, notify Beneficiary of its intention to do so, setting
<br />forth the amounts proposed to be so offset and the basis therefor. Beneficiary shall have the right, within (10) days
<br />after receipt of such notice from Trustor, to reasonably object to all or any part of such offset, and, in the event of
<br />such reasonable objection, Trustor shall not effect any offset of the amounts so objected to by Beneficiary for a
<br />period of thirty (30) days after Beneficiary has delivered its objection notice to Trustor during which time
<br />Beneficiary shall have the right to bring its objections to the attention of any court supervising the bankruptcy of the
<br />owner of the Site Lease and both Beneficiary and Trustor agree to abide by the decision of any such court. If
<br />(A) Beneficiary has failed to object as aforesaid within ten (10) days after notice from Trustor or (B) the court fails
<br />to render its decision within the above - mentioned thirty (30) day period, Trustor may proceed to effect such offset
<br />in the amounts set forth in Trustor's notice. Neither Beneficiary's failure to object as aforesaid nor any objection or
<br />other communication between Beneficiary and Trustor relating to such offset shall constitute an approval of any
<br />such offset by Beneficiary.
<br />(h) If any action, proceeding, motion or notice shall be commenced or filed in respect of
<br />Trustor or the Subject Property in connection with any case under the Bankruptcy Code (other than a case under the
<br />Bankruptcy Code commenced with respect to Trustor), Beneficiary shall have the option, to the exclusion of
<br />Trustor, exercisable upon notice from Beneficiary to Trustor, to conduct and control any such litigation with counsel
<br />of Beneficiary's choice. Beneficiary may proceed in its own name or in the name of Trustor in connection with any
<br />such litigation, and Trustor agrees to execute any and all powers, authorizations, consents and other documents
<br />required by Beneficiary in connection therewith. Trustor shall pay to Beneficiary all costs and expenses (including,
<br />without limitation, reasonable attorneys' fees and disbursements) paid or incurred by Beneficiary in connection with
<br />the prosecution or conduct of any such proceedings within five (5) days after notice from Beneficiary setting forth
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<br />010499/1956/35239.00196
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