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<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.
<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 />Lender to execute in the name of Borrower to the extent Lender may lawfully do so, one or more
<br />financing statements, chattel mortgages or comparable security instruments, to evidence more
<br />effectively the lien and security interest hereof in and upon the Leases.
<br />ARTICLE 5 - MISCELLANEOUS PROVISIONS
<br />Section 5.1 Conflict of Terms. In case of any conflict between the terms of
<br />this Assignment and the terms of the Loan Agreement, the terms of the Loan Agreement shall
<br />prevail.
<br />Section 5.2 No Oral Change. This Assignment and any provisions hereof
<br />may not be modified, amended, waived, extended, changed, discharged or terminated orally, or
<br />by any act or failure to act on the part of Borrower or Lender, but only by an agreement in
<br />writing signed by the party against whom the enforcement of any modification, amendment,
<br />waiver, extension, change, discharge or termination is sought.
<br />Section 5.3 General Definitions. All capitalized terms not defined herein
<br />shall have the respective meanings set forth in the Loan Agreement. Unless the context clearly
<br />indicates a contrary intent or unless otherwise specifically provided herein, words used in this
<br />Assignment may be used interchangeably in singular or plural form and the word "Borrower"
<br />shall mean "each Borrower and any subsequent owner or owners of the Property or any part
<br />thereof or interest therein," the word "Lender" shall mean "Lender and any subsequent holder of
<br />the Note, the word "Note" shall mean "the Note and any other evidence of indebtedness secured
<br />by the Loan Agreement, the word "Property" shall include any portion of the Property and any
<br />interest therein, the phrases "attorneys' fees ", "legal fees" and "counsel fees" shall include any
<br />and all attorney's, paralegal and law clerk fees and disbursements, including, but not limited to,
<br />fees and disbursements at the pre - trial, trial and appellate levels incurred or paid by Lender in
<br />protecting its interest in the Property, the Leases and the Rents and enforcing its rights
<br />hereunder; whenever the context may require, any pronouns used herein shall include the
<br />corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns
<br />shall include the plural and vice versa.
<br />Section 5.4 Inapplicable Provisions. If any term, covenant or condition of
<br />this Assignment is held to be invalid, illegal or unenforceable in any respect, this Assignment
<br />shall be construed without such provision.
<br />NYL1134 753309.3 -7-
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