ASSIGNEE DEALS WITH SIMILAR PROPERTY FOR ITS OWN ACCOUNT.
NEITHER ASSIGNEE NOR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS SHALL
BE LIABLE FOR FAILURE TO DEMAND, COLLECT OR REALIZE UPON ALL OR ANY PART OF THE
CAP COLLATERAL OR FOR ANY DELAY IN DOING SO OR SHALL BE UNDER ANY OBLIGATION TO
SELL OR OTHERWISE DISPOSE OF ANY CAP COLLATERAL UPON THE REQUEST OF ASSIGNOR OR
ANY OTHER PERSON OR TO TAKE ANY OTHER ACTION WHATSOEVER WITH REGARD TO THE CAP
COLLATERAL OR ANY PART THEREOF.
THE POWERS CONFERRED ON ASSIGNEE HEREUNDER ARE
SOLELY TO PROTECT ASSIGNEE'S INTERESTS IN THE CAP COLLATERAL AND SHALL NOT
IMPOSE ANY DUTY UPON ASSIGNEE TO EXERCISE ANY SUCH POWERS.
ASSIGNEE 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 ASSIGNOR FOR ANY ACT OR FAILURE TO
ACT HEREUNDER, EXCEPT FOR THEIR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
11.
ANY NOTICES REQUIRED TO BE GIVEN UNDER THIS ASSIGNMENT
SHALL BE GIVEN IN THE MANNER PROVIDED IN THE LOAN AGREEMENT.
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
3
OR UNENFORCEABILITY IN ANY JURISDICTION SHALL NOT INVALIDATE OR RENDER
UNENFORCEABLE SUCH PROVISION IN ANY OTHER JURISDICTION.
14.
ASSIGNEE 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 ASSIGNEE 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 ASSIGNEE OF ANY RIGHT OR REMEDY HEREUNDER ON ANY ONE
OCCASION SHALL NOT BE CONSTRUED AS A BAR TO ANY RIGHT OR REMEDY WHICH ASSIGNEE
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 ASSIGNEE HEREUNDER AND INSTRUCT
COUNTERPARTY TO MAKE ALL PAYMENTS TO BE MADE UNDER OR PURSUANT TO THE TERMS OF
THE INTEREST RATE CAP AGREEMENT, WITHOUT SET-OFF, DEFENSE OR COUNTERCLAIM, TO
ASSIGNEE IN ACCORDANCE WITH WRITTEN INSTRUCTIONS (SUBJECT TO THE TERMS HEREOF)
DELIVERED BY ASSIGNEE, ITS SUCCESSORS OR ASSIGNS, TO