AGREEMENT.
ADMINISTRATIVE AGENT AGREES TO BE BOUND BY ALL OF
THE TERMS, COVENANTS AND CONDITIONS OF THE INTEREST RATE PROTECTION AGREEMENT.
5.
IN THE EVENT THAT FOR ANY REASON THE INTEREST RATE
PROTECTION AGREEMENT EVER EXPIRES, OR IS TERMINATED, RESCINDED OR REVOKED AND,
AS A RESULT THEREOF, A TERMINATION FEE OR SUCH SIMILAR PAYMENT IS OWING TO
BORROWER BY COUNTERPARTY, SUCH SUM IS AND SHALL BE CONSIDERED A PAYMENT AND A
PART OF THE CAP COLLATERAL AND SHALL BE HELD AND DISBURSED BY ADMINISTRATIVE
AGENT, FOR THE BENEFIT OF LENDERS, IN ACCORDANCE WITH THE TERMS HEREOF;
PROVIDED, HOWEVER, THAT SO LONG AS NO EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING, ADMINISTRATIVE AGENT WILL (A) MAKE SUCH TERMINATION FEE OR SIMILAR
PAYMENT AVAILABLE TO BORROWER TO BE APPLIED TO THE REASONABLE AND CUSTOMARY
COSTS AND EXPENSES PAYABLE BY BORROWER IN CONNECTION WITH BORROWER'S REPLACEMENT
OF THE INTEREST RATE PROTECTION AGREEMENT AND (B) DISBURSE THE BALANCE OF SUCH
TERMINATION FEE OR SIMILAR PAYMENT TO BORROWER IF BORROWER IS NOT REQUIRED TO
REPLACE THE INTEREST RATE PROTECTION AGREEMENT AND/OR BORROWER HAS REPLACED THE
INTEREST RATE PROTECTION AGREEMENT, EACH IN ACCORDANCE WITH THE TERMS AND
PROVISIONS OF THIS ASSIGNMENT AND THE OTHER LOAN DOCUMENTS, AND SUCH REPLACEMENT
INTEREST RATE CAP AGREEMENT, IF REQUIRED PURSUANT TO THE TERMS OF THE LOAN
DOCUMENTS, IS IN FACT IN FULL FORCE AND EFFECT.
6.
BORROWER REPRESENTS AND WARRANTS THAT:
(A) IT HAS THE FULL
POWER, RIGHT AND AUTHORITY TO ASSIGN ITS INTEREST IN THE CAP COLLATERAL,
(B) BORROWER OWNS THE CAP COLLATERAL FREE AND CLEAR OF ALL LIENS AND CLAIMS OF
OTHERS AND BORROWER HAS NOT TRANSFERRED, ASSIGNED, GRANTED A SECURITY INTEREST
IN OR OTHERWISE ENCUMBERED ITS INTEREST IN AND TO THE CAP COLLATERAL OTHER THAN
IN FAVOR OF ADMINISTRATIVE AGENT, FOR THE BENEFIT OF LENDERS, (C) NO SECURITY
AGREEMENT, FINANCING STATEMENT OR OTHER DOCUMENT IS ON FILE OR OF RECORD IN ANY
PUBLIC OFFICE WITH RESPECT TO THE CAP COLLATERAL, OTHER THAN IN FAVOR OF
ADMINISTRATIVE AGENT, FOR THE BENEFIT OF LENDERS, (D) THE OBLIGATION OF THE
COUNTERPARTY UNDER THE INTEREST RATE PROTECTION AGREEMENT TO MAKE PAYMENTS IS
NOT SUBJECT TO ANY DEFENSE OR COUNTERCLAIM ARISING FROM ANY ACT OR OMISSION OF
BORROWER OR ANY AFFILIATE OF BORROWER, (E) THE LOCATION OF ITS CHIEF EXECUTIVE
OFFICE IS THE ADDRESS SET FORTH IN THE CAPTION TO THIS ASSIGNMENT AND (F) UPON
THE FILING OF UCC FINANCING STATEMENTS NAMING BORROWER AS DEBTOR AND
ADMINISTRATIVE AGENT AS SECURED PARTY AND ADEQUATELY DESCRIBING THE CAP
COLLATERAL, ADMINISTRATIVE AGENT, FOR THE BENEFIT OF LENDERS, HAS A FIRST
PRIORITY PERFECTED LIEN ON THE CAP COLLATERAL.
7.
BORROWER COVENANTS AND AGREES WITH ADMINISTRATIVE AGENT AS
FOLLOWS (A) IT WILL COMPLY WITH ALL TERMS OF THE INTEREST RATE PROTECTION
AGREEMENT, (B) IT WILL NOT WAIVE ANY MATERIAL PROVISION OF THE INTEREST RATE
PROTECTION AGREEMENT, FAIL TO DELIVER A COPY OF ANY NOTICE RECEIVED FROM
COUNTERPARTY TO ADMINISTRATIVE AGENT OR, WITHOUT THE PRIOR WRITTEN CONSENT OF
ADMINISTRATIVE AGENT, WHICH CONSENT MAY BE WITHHELD BY ADMINISTRATIVE