TO
PROTECT ADMINISTRATIVE AGENT'S INTERESTS IN THE CAP COLLATERAL AND SHALL NOT
IMPOSE ANY DUTY UPON ADMINISTRATIVE AGENT TO EXERCISE ANY SUCH POWERS.
ADMINISTRATIVE AGENT SHALL BE ACCOUNTABLE ONLY FOR AMOUNTS THAT THEY ACTUALLY
RECEIVE AS A RESULT OF THE EXERCISE OF SUCH POWERS, AND NEITHER IT NOR ANY OF
ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS SHALL BE RESPONSIBLE TO ANY
BORROWER FOR ANY ACT OR FAILURE TO ACT HEREUNDER, EXCEPT FOR THEIR OWN FRAUD,
GROSS NEGLIGENCE, ILLEGAL ACTS, OR WILLFUL MISCONDUCT.
11.
ANY NOTICES REQUIRED TO BE GIVEN UNDER THIS ASSIGNMENT SHALL BE
GIVEN IN THE MANNER AS PROVIDED IN THE LOAN AGREEMENT.
4
12.
THIS ASSIGNMENT MAY NOT BE MODIFIED, AMENDED OR TERMINATED
EXCEPT BY A WRITTEN AGREEMENT EXECUTED BY ALL OF THE PARTIES HERETO.
13.
ANY PROVISION OF THIS ASSIGNMENT WHICH IS PROHIBITED OR
UNENFORCEABLE IN ANY JURISDICTION SHALL, AS TO SUCH JURISDICTION, BE INEFFECTIVE
TO THE EXTENT OF SUCH PROHIBITION OR UNENFORCEABILITY WITHOUT INVALIDATING THE
REMAINING PROVISIONS HEREOF, AND ANY SUCH PROHIBITION OR UNENFORCEABILITY IN ANY
JURISDICTION SHALL NOT INVALIDATE OR RENDER UNENFORCEABLE SUCH PROVISION IN ANY
OTHER JURISDICTION.
14.
ADMINISTRATIVE AGENT SHALL NOT BY ANY ACT (EXCEPT BY A WRITTEN
INSTRUMENT), DELAY, INDULGENCE, OMISSION OR OTHERWISE BE DEEMED TO HAVE WAIVED
ANY RIGHT OR REMEDY HEREUNDER OR TO HAVE ACQUIESCED IN ANY EVENT OF DEFAULT OR
IN ANY BREACH OF ANY OF THE TERMS AND CONDITIONS HEREOF.
NO FAILURE TO
EXERCISE, NOR ANY DELAY IN EXERCISING, ON THE PART OF ADMINISTRATIVE AGENT OR
ANY LENDER ANY RIGHT, POWER OR PRIVILEGE HEREUNDER SHALL OPERATE AS A WAIVER
THEREOF.
NO SINGLE OR PARTIAL EXERCISE OF ANY RIGHT, POWER OR PRIVILEGE
HEREUNDER SHALL PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF OR THE EXERCISE
OF ANY OTHER RIGHT, POWER OR PRIVILEGE.
A WAIVER BY ADMINISTRATIVE AGENT, ON
BEHALF OF LENDERS, OF ANY RIGHT OR REMEDY HEREUNDER ON ANY ONE OCCASION SHALL
NOT BE CONSTRUED AS A BAR TO ANY RIGHT OR REMEDY WHICH ADMINISTRATIVE AGENT AND
LENDERS OTHERWISE HAVE ON ANY FUTURE OCCASION.
THE RIGHTS AND REMEDIES HEREIN
PROVIDED ARE CUMULATIVE, MAY BE EXERCISED SINGULARLY OR CONCURRENTLY AND ARE NOT
EXCLUSIVE OF ANY RIGHTS OR REMEDIES PROVIDED BY LAW.
15.
THE PARTIES HERETO HEREBY NOTIFY COUNTERPARTY OF THIS
ASSIGNMENT AND THE SECURITY INTERESTS GRANTED TO ADMINISTRATIVE AGENT, FOR THE
BENEFIT OF LENDERS, HEREUNDER AND INSTRUCT COUNTERPARTY TO MAKE ALL PAYMENTS TO
BE MADE UNDER OR PURSUANT TO THE TERMS OF THE INTEREST RATE PROTECTION
AGREEMENT, WITHOUT SET‐OFF, DEFENSE OR COUNTERCLAIM, TO ADMINISTRATIVE AGENT,
FOR THE ACCOUNT OF LENDERS, IN ACCORDANCE WITH WRITTEN INSTRUCTIONS (SUBJECT TO
THE TERMS HEREOF) DELIVERED BY ADMINISTRATIVE AGENT, ITS SUCCESSORS OR ASSIGNS,
TO COUNTERPARTY AT THE ADDRESS SET FORTH UNDER ITS SIGNATURE HERETO.
16.
THIS ASSIGNMENT SHALL BE GOVERNED, CONSTRUED, APPLIED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17.
THIS ASSIGNMENT SHALL TERMINATE UPON THE EARLIER TO OCCUR OF
(A) THE TERMINATION OR EXPIRATION OF THE INTEREST RATE PROTECTION AGREEMENT AND
(B) THE PAYMENT IN FULL OF THE