THE LEASES, OR
FOR THE PERFORMANCE OF ANY OF THE LESSEES' UNDERTAKINGS UNDER THE LEASES, AND
THE LESSEES SHALL HAVE NO RIGHT OR DUTY TO INQUIRE AS TO WHETHER ANY DEFAULT HAS
ACTUALLY OCCURRED OR IS THEN EXISTING HEREUNDER.
MORTGAGOR HEREBY RELIEVES THE
LESSEES FROM ANY LIABILITY TO MORTGAGOR BY REASON OF RELYING UPON AND COMPLYING
WITH ANY SUCH NOTICE OR DEMAND BY MORTGAGEE.
3.3
EFFECT OF ASSIGNMENT.
THE FOREGOING IRREVOCABLE
ASSIGNMENT SHALL NOT CAUSE MORTGAGEE TO BE: (A) A MORTGAGEE IN POSSESSION; (B)
RESPONSIBLE OR LIABLE FOR THE CONTROL, CARE, MANAGEMENT OR REPAIR OF THE SUBJECT
PROPERTY OR FOR PERFORMING ANY OF THE TERMS, AGREEMENTS, UNDERTAKINGS,
OBLIGATIONS, REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS OF THE
LEASES; OR (C) RESPONSIBLE OR LIABLE FOR ANY WASTE COMMITTED ON THE SUBJECT
PROPERTY BY THE LESSEES UNDER ANY OF THE LEASES OR ANY OTHER PARTIES; FOR ANY
DANGEROUS OR DEFECTIVE CONDITION OF THE SUBJECT PROPERTY; OR FOR ANY NEGLIGENCE
IN THE MANAGEMENT, UPKEEP, REPAIR OR CONTROL OF THE SUBJECT PROPERTY RESULTING
IN LOSS OR INJURY OR DEATH TO ANY LESSEE, LICENSEE, EMPLOYEE, INVITEE OR OTHER
PERSON. MORTGAGEE SHALL NOT DIRECTLY OR INDIRECTLY BE LIABLE TO MORTGAGOR OR ANY
OTHER PERSON AS A CONSEQUENCE OF: (I) THE EXERCISE OR FAILURE TO EXERCISE BY
MORTGAGEE, OR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, CONTRACTORS OR
SUBCONTRACTORS, ANY OF THE RIGHTS, REMEDIES OR POWERS GRANTED TO MORTGAGEE
HEREUNDER; OR
7
(II) THE FAILURE OR REFUSAL OF MORTGAGEE TO PERFORM OR DISCHARGE ANY OBLIGATION,
DUTY OR LIABILITY OF MORTGAGOR ARISING UNDER THE LEASES.
3.4
REPRESENTATIONS AND WARRANTIES.
MORTGAGOR REPRESENTS
AND WARRANTS THAT:
(A) THE SCHEDULE OF LEASES ATTACHED HERETO AS SCHEDULE 1 IS,
AS OF THE DATE HEREOF, A TRUE, ACCURATE AND COMPLETE LIST OF ALL LEASES; (B) ALL
EXISTING LEASES ARE IN FULL FORCE AND EFFECT AND ARE ENFORCEABLE IN ACCORDANCE
WITH THEIR RESPECTIVE TERMS EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY
APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM AND SIMILAR LAWS
OF GENERAL APPLICATION RELATING TO OR AFFECTING THE RIGHTS AND REMEDIES OF
CREDITORS AND BY GENERAL EQUITABLE PRINCIPLES, REGARDLESS OF WHETHER SUCH
ENFORCEABILITY IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW, AND, TO
MORTGAGOR'S KNOWLEDGE, NO BREACH OR DEFAULT, OR EVENT WHICH WOULD CONSTITUTE A
BREACH OR DEFAULT AFTER NOTICE OR THE PASSAGE OF TIME, OR BOTH, EXISTS UNDER ANY
EXISTING LEASES ON THE PART OF ANY PARTY; (C) NO RENT OR OTHER PAYMENT UNDER ANY
EXISTING LEASE HAS BEEN PAID BY ANY LESSEE FOR MORE THAN ONE (1) MONTH IN
ADVANCE; AND (D) NONE OF THE LESSOR'S INTERESTS UNDER ANY OF THE LEASES HAS BEEN
TRANSFERRED OR ASSIGNED.
3.5
COVENANTS. MORTGAGOR COVENANTS AND AGREES AT
MORTGAGOR'S SOLE COST AND EXPENSE TO: (A) PERFORM IN ALL MATERIAL RESPECTS THE
OBLIGATIONS OF LESSOR CONTAINED IN THE LEASES AND ENFORCE BY ALL AVAILABLE
REMEDIES PERFORMANCE IN ALL MATERIAL RESPECTS BY THE LESSEES OF THE OBLIGATIONS
OF THE LESSEES CONTAINED IN THE LEASES; (B) GIVE MORTGAGEE PROMPT WRITTEN NOTICE
WHEN MORTGAGOR LEARNS OF ANY DEFAULT WHICH OCCURS