THE
PRIOR WRITTEN CONSENT OF THE ADMINISTRATIVE AGENT, EXCEPT AS AFORESAID, WAIVE OR
RELEASE ANY OBLIGATION OF ANY COUNTERPARTY (OR ANY SUCCESSOR OR SUBSTITUTE PARTY
TO ANY INTEREST RATE CAP AGREEMENT) UNDER ANY INTEREST RATE CAP AGREEMENT, (IV)
WITHOUT THE PRIOR WRITTEN CONSENT OF THE ADMINISTRATIVE AGENT, CONSENT OR AGREE
TO ANY ACT OR OMISSION TO ACT ON THE PART OF ANY COUNTERPARTY (OR ANY SUCCESSOR
OR SUBSTITUTE PARTY TO ANY INTEREST RATE CAP AGREEMENT) WHICH, WITHOUT SUCH
CONSENT OR AGREEMENT, WOULD CONSTITUTE A DEFAULT UNDER SUCH INTEREST RATE CAP
AGREEMENT, (V) FAIL TO EXERCISE PROMPTLY AND DILIGENTLY EACH AND EVERY MATERIAL
RIGHT WHICH IT MAY HAVE UNDER EACH INTEREST RATE CAP AGREEMENT, (VI) TAKE OR
INTENTIONALLY OMIT TO TAKE ANY ACTION OR INTENTIONALLY SUFFER OR PERMIT ANY
ACTION TO BE OMITTED OR TAKEN, THE TAKING OR OMISSION OF WHICH WOULD RESULT IN
ANY RIGHT OF OFFSET AGAINST SUMS PAYABLE UNDER ANY INTEREST RATE CAP AGREEMENT
OR ANY DEFENSE BY ANY COUNTERPARTY (OR ANY SUCCESSOR OR SUBSTITUTE PARTY TO THE
INTEREST RATE CAP AGREEMENT) TO PAYMENT OR (VII) FAIL TO GIVE PROMPT NOTICE TO
THE ADMINISTRATIVE AGENT OF ANY NOTICE OF DEFAULT GIVEN BY OR TO THE BORROWER
UNDER OR WITH RESPECT TO ANY INTEREST RATE CAP AGREEMENT, TOGETHER WITH A
COMPLETE COPY OF SUCH NOTICE.
53
(4)
REPRESENTATIONS AND WARRANTIES.
THE
BORROWER HEREBY COVENANTS WITH, AND REPRESENTS AND WARRANTS TO, THE
ADMINISTRATIVE AGENT AS FOLLOWS:
(A)
EACH INTEREST RATE CAP AGREEMENT CONSTITUTES
THE LEGAL, VALID AND BINDING OBLIGATION OF THE BORROWER, ENFORCEABLE AGAINST THE
BORROWER IN ACCORDANCE WITH ITS TERMS, SUBJECT ONLY TO APPLICABLE BANKRUPTCY,
INSOLVENCY AND SIMILAR LAWS AFFECTING RIGHTS OF CREDITORS GENERALLY, AND
SUBJECT, AS TO ENFORCEABILITY, TO GENERAL PRINCIPLES OF EQUITY (REGARDLESS OF
WHETHER ENFORCEMENT IS SOUGHT IN A PROCEEDING IN EQUITY OR AT LAW).
(B)
THE RATE CAP COLLATERAL IS FREE AND CLEAR OF
ALL CLAIMS OR SECURITY INTERESTS OF EVERY NATURE WHATSOEVER, EXCEPT SUCH AS ARE
CREATED PURSUANT TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AND THE
BORROWER HAS THE RIGHT TO PLEDGE AND GRANT A SECURITY INTEREST IN THE SAME AS
HEREIN PROVIDED WITHOUT THE CONSENT OF ANY OTHER PERSON OTHER THAN ANY SUCH
CONSENT THAT HAS BEEN OBTAINED AND IS IN FULL FORCE AND EFFECT.
(C)
THE RATE CAP COLLATERAL HAS BEEN DULY AND
VALIDLY PLEDGED HEREUNDER. ALL CONSENTS AND APPROVALS REQUIRED TO BE OBTAINED BY
THE BORROWER FOR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT HAVE BEEN OBTAINED.
(D)
GIVING EFFECT TO THE AFORESAID GRANT AND
ASSIGNMENT TO THE ADMINISTRATIVE AGENT, THE ADMINISTRATIVE AGENT HAS, AS OF THE
DATE OF THIS AGREEMENT, AND AS TO RATE CAP COLLATERAL ACQUIRED FROM TIME TO TIME
AFTER SUCH DATE, SHALL HAVE, A VALID, AND UPON PROPER FILING, PERFECTED AND
CONTINUING FIRST PRIORITY LIEN UPON AND SECURITY INTEREST IN THE RATE CAP
COLLATERAL; PROVIDED THAT NO REPRESENTATION OR WARRANTY IS MADE WITH RESPECT TO
THE PERFECTED STATUS OF THE SECURITY INTEREST OF THE ADMINISTRATIVE AGENT IN THE
PROCEEDS OF RATE CAP