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<br />any person or entity other than lender; (c) Borrower's interest in the Sandpointe Agreement is not and
<br />will not be subject to any claims, setoffs, encumbrances or deductions, other than the rights of the City,
<br />the Agency, Sandpointe or Geneva Commons under applicable laws or as expressly set forth therein; (d)
<br />the Sandpointe Agreement constitutes and will constitute valid and binding obligations of Borrower and is
<br />and will be enforceable against Borrower, City, the Agency, Sandpointe and Geneva Commons in
<br />accordance with its respective terms and has not been and will not be amended, extended,
<br />supplemented, or terminated except as expressly permitted under the loan Documents, (e) Borrower is
<br />not in default, and to the best knowledge of Borrower, City, the Agency, Sandpointe and Geneva
<br />Commons are not in default under the terms of the Sandpointe Agreement beyond any applicable notice
<br />and cure period; (I) all covenants, conditions and agreements required to be performed by Borrower will
<br />be performed as required by the Sandpointe Agreement; and (g) a true, correct and complete copy of the
<br />Sandpointe Agreement has been furnished to lender.
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<br />4. No AssumDtion bv Lender and Covenants of Borrower. Neither this Assignment nor
<br />any action or actions on the part of lender shall constitute an assumption of any obligations on the part of
<br />lender under the Sandpointe Agreement, and Borrower shall continue to be liable for all of its obligations
<br />thereunder. Borrower hereby does agree to promptly perform any and all obligations it may have under
<br />the Sandpointe Agreement and when required by the Sandpointe Agreement and applicable laws, to
<br />take such steps as may be necessary or appropriate to secure performance by City, the Agency,
<br />Sandpointe and Geneva Commons of all of its obligations under the Sandpointe Agreement. At lender's
<br />option, lender may, but shall not be obligated, to perform or discharge any obligation of Borrower under
<br />the Sandpointe Agreement, at the expense of Borrower, in the event that Borrower fails to do so within
<br />ten (10) days after written notice of such failure. lender shall notify Borrower of any such actions as soon
<br />as reasonably practicable; provided, however, the failure of lender to so notify Borrower shall not alter
<br />the obligation of Borrower to lender under this Assignment. Borrower hereby agrees to indemnify and
<br />hold lender and its agents harmless from and against any loss, cost, liability or reasonable expense
<br />(including, without limitation, reasonable attorneys' and accountants' fees and expenses actually incurred,
<br />court costs and investigation expenses) resulting from any failure of Borrower to perform its obligations
<br />under the Sandpointe Agreement.
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<br />5. Benefits Conditionally Retained by Borrower. lender hereby grants Borrower the
<br />right to continue to receive the benefits of, and exercise the rights under, the Sandpointe Agreement
<br />unless and until an Event of Default occurs, in which event such rights may be revoked at any time
<br />thereafter at the option of lender.
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<br />6. Action by Lender Followinll Event of Default. lender shall have the right, but not the
<br />obligation, at any time following the occurrence of an Event of Default, without notice and without taking
<br />possession of the Project or any part thereof, to take in lender's name, or in the name of Borrower or
<br />Guarantor, such action as lender may, at any time or from time to time, reasonably determine to be
<br />necessary to cure any default under the Sandpointe Agreement or to protect or exercise the rights of
<br />Borrower or lender thereunder, and may otherwise exercise any other rights or remedies lender has
<br />under the loan Documents. lender shall incur no liability if any action taken by it or on its behalf
<br />pursuant to this Assignment shall prove to be in whole or in part inadequate or invalid; and Borrower
<br />hereby agrees to indemnify, defend, and hold lender free and harmless from and against any loss, costs,
<br />liability or reasonable expense (including, without limitation, reasonable attorneys' and accountants' fees
<br />and expenses actually incurred, court costs and investigation expenses) in connection with its actions
<br />hereunder, except to the extent directly caused by lender's gross negligence or willful misconduct.
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<br />7. Power of Attorney. Borrower hereby irrevocably constitutes and appoints Lender as its
<br />true and lawful agent and attorney-in-fact, with full power of substitution, to demand, receive and enforce
<br />all rights of Borrower under the Sandpointe Agreement, to modify, supplement and terminate the
<br />Sandpointe Agreement, to give appropriate releases, receipts for or on behalf of Borrower in connection
<br />with the Sandpointe Agreement, to file, pursue, receive payment and acquittances for or otherwise
<br />compromise each and every claim Borrower has or may have against City, the Agency, Sandpointe or
<br />Geneva Commons for payment or otherwise under the Sandpointe Agreement, all in the name, place and
<br />stead of Borrower or in Lender's name, with the same force and effect as Borrower could have if this
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<br />780574.01/0C
<br />N6003-044/6-8-06fsijlsij
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