AND OF NO
EFFECT.
SECTION 5.7
NOTICES.
ALL NOTICES OR OTHER WRITTEN COMMUNICATIONS
HEREUNDER SHALL BE DELIVERED IN ACCORDANCE WITH SECTION 10.6 OF THE LOAN
AGREEMENT.
SECTION 5.8
WAIVER OF TRIAL BY JURY.
BORROWER HEREBY AGREES NOT
TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY,
8
AND FOREVER WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH
RIGHT SHALL NOW OR HEREAFTER EXIST, WITH REGARD TO THIS ASSIGNMENT, THE NOTE,
THE MORTGAGE OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER
ACTION ARISING IN CONNECTION THEREWITH.
THIS WAIVER OF RIGHT TO TRIAL BY JURY
IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE.
LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS
PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER.
SECTION 5.9
EXCULPATION.
THE PROVISIONS OF SECTION 10.1 OF THE
LOAN AGREEMENT ARE HEREBY INCORPORATED BY REFERENCE INTO THIS ASSIGNMENT TO THE
SAME EXTENT AND WITH THE SAME FORCE AS IF FULLY SET FORTH HEREIN.
SECTION 5.10
SUCCESSORS AND ASSIGNS.
THIS ASSIGNMENT SHALL BE
BINDING UPON AND SHALL INURE TO THE BENEFIT OF BORROWER AND LENDER AND THEIR
RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS FOREVER.
LENDER SHALL HAVE THE
RIGHT TO ASSIGN OR TRANSFER ITS RIGHTS UNDER THIS ASSIGNMENT IN CONNECTION WITH
ANY ASSIGNMENT OF THE LOAN AND THE LOAN DOCUMENTS IN ACCORDANCE WITH THE TERMS
OF THE LOAN AGREEMENT.
ANY SUCH ASSIGNEE OR TRANSFEREE OF LENDER SHALL BE
ENTITLED TO ALL THE BENEFITS AFFORDED TO LENDER UNDER THIS ASSIGNMENT.
BORROWER
SHALL NOT HAVE THE RIGHT TO ASSIGN OR TRANSFER ITS RIGHTS OR OBLIGATIONS UNDER
THIS ASSIGNMENT OTHER THAN IN ACCORDANCE WITH THE TERMS OF THE LOAN AGREEMENT,
AND ANY ATTEMPTED ASSIGNMENT IN CONTRAVENTION OF THE LOAN AGREEMENT SHALL BE
NULL AND VOID.
SECTION 5.11
HEADINGS, ETC.
THE HEADINGS AND CAPTIONS OF THE VARIOUS
PARAGRAPHS OF THIS ASSIGNMENT ARE FOR CONVENIENCE OF REFERENCE ONLY AND ARE NOT
TO BE CONSTRUED AS DEFINING OR LIMITING, IN ANY WAY, THE SCOPE OR INTENT OF THE
PROVISIONS HEREOF.
SECTION 5.12
JOINT AND SEVERAL LIABILITY.
IF MORE THAN ONE PERSON
HAS EXECUTED THIS AGREEMENT AS "BORROWER," THE REPRESENTATIONS, COVENANTS,
WARRANTIES AND OBLIGATIONS OF ALL SUCH PERSONS HEREUNDER SHALL BE JOINT AND
SEVERAL.
SECTION 5.13
CONFLICT.
IN THE EVENT OF ANY CONFLICT BETWEEN THE
PROVISIONS OF THIS ASSIGNMENT AND THE LOAN AGREEMENT, THE PROVISIONS OF THE LOAN
AGREEMENT SHALL CONTROL.
ARTICLE 6
NEW YORK LAW PROVISIONS
SECTION 6.1
IN THE EVENT OF ANY INCONSISTENCIES BETWEEN THE TERMS
AND CONDITIONS OF THIS ARTICLE 6 AND THE OTHER TERMS AND CONDITIONS OF THIS
ASSIGNMENT, THE TERMS AND CONDITIONS OF THIS ARTICLE 6 SHALL CONTROL AND BE
BINDING.
SECTION 6.2
EXCEPT AS NOT PROHIBITED UNDER THE LOAN AGREEMENT OR
ANY OTHER LOAN DOCUMENT, BORROWER HEREBY COVENANTS AND AGREES WITH LENDER THAT
WITHOUT THE WRITTEN CONSENT OF LENDER FIRST