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200603561
<br />(b) (i) The lien of this Deed of Trust shall attach to all of Grantor's rights and
<br />remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, 11
<br />U.S.C. § 365(h), as the same may hereafter be amended (the "Bankruptcy Code "), including,
<br />without limitation, all of Grantor's rights to remain in possession of the Occupied Land. If an
<br />Event of Default shall have occurred and be continuing, Grantor shall not, without Beneficiary's
<br />prior 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 first to all costs and expenses of
<br />Beneficiary (including, without limitation, 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 />reasonably satisfactory to Beneficiary, a UCC Financing Statement (Form UCC -1) and
<br />all such additional instruments, agreements and other documents, as may at any time
<br />hereafter be required by Beneficiary to carry out such assignment.
<br />(iii) If pursuant to Subsection 365(h)(1)(B) of the Bankruptcy Code, Grantor
<br />shall seek to offset against the rent reserved in any Occupancy Agreement the amount of
<br />any damages caused by the nonperformance by the lessor or any other party of any of
<br />their respective obligations under such Occupancy Agreement after the rejection by the
<br />lessor or such other party of such Occupancy Agreement under the Bankruptcy Code,
<br />then Grantor shall, if an Event of Default shall have occurred and be continuing, prior to
<br />effecting such offset, notify Beneficiary of its intent to do so, setting forth the amount
<br />proposed to be so offset and the basis therefor. In such event, Beneficiary shall have the
<br />right to object to all or any part of such offset that, in the reasonable judgment of
<br />Beneficiary, would constitute a breach of such Occupancy Agreement, and in the event of
<br />such objection, Grantor shall not effect any offset of the amounts found objectionable by
<br />Beneficiary. Neither Beneficiary's failure to object as aforesaid nor any objection
<br />relating to such offset shall constitute an approval of any such offset by Beneficiary.
<br />(iv) Grantor shall, after obtaining knowledge thereof, promptly notify
<br />Beneficiary of any filing by or against the lessor or other party with an interest in the
<br />Real Estate of a petition under the Bankruptcy Code. Grantor shall promptly deliver to
<br />Beneficiary, following receipt, copies of any and all notices, summonses, pleadings,
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