OR
NOTICE, ALL OF WHICH ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY
EXPRESSLY WAIVED BY THE BORROWER, SHALL BE REQUIRED IN CONNECTION WITH
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ANY SALE OR OTHER DISPOSITION OF ALL OR ANY PART OF THE RATE CAP COLLATERAL,
EXCEPT THAT THE ADMINISTRATIVE AGENT SHALL GIVE THE BORROWER AT LEAST THIRTY
(30) BUSINESS DAYS' PRIOR WRITTEN NOTICE OF THE TIME AND PLACE OF ANY PUBLIC
SALE OR OF THE TIME WHEN AND THE PLACE WHERE ANY PRIVATE SALE OR OTHER
DISPOSITION IS TO BE MADE, WHICH NOTICE THE BORROWER HEREBY AGREE IS REASONABLE,
ALL OTHER DEMANDS, ADVERTISEMENTS AND NOTICES BEING HEREBY WAIVED. TO THE EXTENT
PERMITTED BY LAW, THE ADMINISTRATIVE AGENT SHALL NOT BE OBLIGATED TO MAKE ANY
SALE OF THE RATE CAP COLLATERAL IF IT SHALL DETERMINE NOT TO DO SO, REGARDLESS
OF THE FACT THAT NOTICE OF SALE MAY HAVE BEEN GIVEN, AND THE ADMINISTRATIVE
AGENT MAY WITHOUT NOTICE OR PUBLICATION ADJOURN ANY PUBLIC OR PRIVATE SALE, AND
SUCH SALE MAY, WITHOUT FURTHER NOTICE, BE MADE AT THE TIME AND PLACE TO WHICH
THE SAME WAS SO ADJOURNED. UPON EACH PRIVATE SALE OF THE RATE CAP COLLATERAL OF
A TYPE CUSTOMARILY SOLD IN A RECOGNIZED MARKET AND UPON EACH PUBLIC SALE, UNLESS
PROHIBITED BY ANY APPLICABLE STATUTE WHICH CANNOT BE WAIVED, THE ADMINISTRATIVE
AGENT (OR ITS NOMINEE OR DESIGNEE) MAY PURCHASE ANY OR ALL OF THE RATE CAP
COLLATERAL BEING SOLD, FREE AND DISCHARGED FROM ANY TRUSTS, CLAIMS, EQUITY OR
RIGHT OF REDEMPTION OF THE BORROWER, ALL OF WHICH ARE HEREBY WAIVED AND RELEASED
TO THE EXTENT PERMITTED BY LAW, AND MAY MAKE PAYMENT THEREFOR BY CREDIT AGAINST
ANY OF THE OBLIGATIONS IN LIEU OF CASH OR ANY OTHER OBLIGATIONS. IN THE CASE OF
ALL SALES OF THE RATE CAP COLLATERAL, PUBLIC OR PRIVATE, THE BORROWER SHALL PAY
ALL REASONABLE COSTS AND EXPENSES OF EVERY KIND FOR SALE OR DELIVERY, INCLUDING
BROKERS' AND ATTORNEYS' FEES AND DISBURSEMENTS AND ANY TAX IMPOSED THEREON.
HOWEVER, THE PROCEEDS OF SALE OF RATE CAP COLLATERAL SHALL BE AVAILABLE TO COVER
SUCH COSTS AND EXPENSES, AND, AFTER DEDUCTING SUCH COSTS AND EXPENSES FROM THE
PROCEEDS OF SALE, THE ADMINISTRATIVE AGENT SHALL APPLY ANY RESIDUE TO THE
PAYMENT OF THE OBLIGATIONS IN THE ORDER OF PRIORITY AS SET FORTH IN THIS
AGREEMENT.
(8)
PUBLIC SALES NOT POSSIBLE.
THE BORROWER
ACKNOWLEDGES THAT THE TERMS OF THE INTEREST RATE CAP AGREEMENTS MAY PROHIBIT
PUBLIC SALES, THAT THE RATE CAP COLLATERAL MAY NOT BE OF THE TYPE APPROPRIATELY
SOLD AT PUBLIC SALES, AND THAT SUCH SALES MAY BE PROHIBITED BY LAW.
IN LIGHT OF
THESE CONSIDERATIONS, THE BORROWER AGREES THAT PRIVATE SALES OF THE RATE CAP
COLLATERAL SHALL NOT BE DEEMED TO HAVE BEEN MADE IN A COMMERCIALLY UNREASONABLY
MANNER BY MERE VIRTUE OF HAVING BEEN MADE PRIVATELY.
(9)
RECEIPT OF SALE PROCEEDS.
UPON ANY SALE OF
THE RATE CAP COLLATERAL BY THE ADMINISTRATIVE AGENT HEREUNDER (WHETHER BY VIRTUE
OF THE POWER OF SALE HEREIN GRANTED, PURSUANT TO JUDICIAL PROCESS OR OTHERWISE),
THE RECEIPT