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24104414'7 (4) Borrower shall have provided the Lender with an indemnity reasonably satisfactory to Lender in all respects from a principal of the New Borrower, which principal shall have a tangible net worth and otherwise be reasonably satisfactory to the Lender indemnifying Lender and the beneficiaries under the Declaration of Trust from any tax liability or loss, damage; cost or expense with respect to the transactions contemplated by the Paydown and Payup Rights in excess of the tax liability that Lender and such beneficiaries would have incurred if the Paydown and Payup transactions had not occurred, other than tax liability (a) attributable to the receipt by Lender or such beneficiaries of (i) the earnings on the Total Paydown Amount as invested pursuant hereto, and (ii) (but only in the event that the Payup right is not exercised) the Paydown Make Whole Premium; (b) arising from the fact that the adjusted basis in the Note of a beneficiary under the Declaration of Trust immediately prior to the Paydown is less than its proportionate share of the balance of the Note; (c) with respect to any such beneficiary that is a Real Estate Mortgage Investment Conduit pursuant to Section 860 et seq. of the Internal Revenue Code of 1986; or (d) attributable to the willful misconduct or grass negligence of Lender or any such beneficiary (items (a) through (d) "Excluded Liabilities "); (S) Lender shall have received an opinion of counsel satisfactory to Lender to the effect that Lender shall not be subject to tax liability as a result of the transactions contemplated by the Paydown and Payup Rights other than with respect to the Excluded Liabilities; and (6) Borrower shall have paid or reimbursed the Escrow Agent and the Lender for all reasonable out-of=pocket expenses (including, without limitation, reasonable attorney's fees) incurred by the Lender and the beneficiaries under the Declaration of Trust in connection with the execution, review, approval and documentation of the exercise of the Payup Right. (fj Upon satisfaction of the Payup Requirements, the Escrow Agent shall (1) re-advance to New Borrower, on behalf of the Lender, as principal under the Note and secured by this Security Instrument, the Payup Amount; (2) pay to New Borrower or its order the Paydown Make Whole Premium and Interest Accrual; and (3) pay to the Lender the Interim Interest Fee and the earnings on the Total Paydown Amount as compensation for the transactions contemplated hereby and not as a payment with respect to the Note. (g) In the event the Payup Requirements are not satisfied by 5:00 pm New York time on the last Business Day of the Paydown Period, Escrow Agent shall (i) remit to the Lender the Paydown Amount ,and Paydown Make-Whole Premium as a prepayment of the Note and premium thereon; (ii) pay to the Lender the Interim Interest Fee and Interest Accrual to cover accrued but unpaid interest on the Note on the following Business Day; and (iii) pay to the Lender the earnings on the -31-