SHALL HAVE
AN INITIAL NOTIONAL AMOUNT EQUAL TO THE THEN PRINCIPAL BALANCE OF THE LOAN.
BORROWER SHALL COLLATERALLY ASSIGN TO LENDER, PURSUANT TO THE COLLATERAL
ASSIGNMENT OF INTEREST RATE CAP AGREEMENT, ALL OF ITS RIGHT, TITLE AND INTEREST
TO RECEIVE ANY AND ALL PAYMENTS UNDER THE INTEREST RATE CAP AGREEMENT, AND SHALL
DELIVER TO LENDER AN EXECUTED COUNTERPART OF SUCH INTEREST RATE CAP AGREEMENT
(WHICH SHALL, BY ITS TERMS, AUTHORIZE THE ASSIGNMENT TO LENDER AND REQUIRE THAT
PAYMENTS BE DEPOSITED DIRECTLY INTO THE COLLECTION ACCOUNT).
(B)
BORROWER SHALL COMPLY WITH ALL OF ITS OBLIGATIONS UNDER THE TERMS
AND PROVISIONS OF THE INTEREST RATE CAP AGREEMENT.
ALL AMOUNTS PAID BY THE
COUNTERPARTY UNDER THE INTEREST RATE CAP AGREEMENT TO BORROWER OR LENDER SHALL
BE DEPOSITED IMMEDIATELY INTO THE COLLECTION ACCOUNT OR IF THE COLLECTION
ACCOUNT IS NOT THEN REQUIRED TO BE IN EFFECT, INTO SUCH ACCOUNT AS SPECIFIED BY
LENDER.
BORROWER SHALL TAKE ALL ACTIONS REASONABLY REQUESTED BY LENDER TO
ENFORCE LENDER'S RIGHTS UNDER THE INTEREST RATE CAP AGREEMENT IN THE EVENT OF A
DEFAULT BY THE COUNTERPARTY AND SHALL NOT WAIVE, AMEND OR OTHERWISE MODIFY ANY
OF ITS RIGHTS THEREUNDER.
(C)
IN THE EVENT OF ANY DOWNGRADE, WITHDRAWAL OR QUALIFICATION OF THE
RATING OF THE COUNTERPARTY BY S&P OR MOODY'S, BORROWER SHALL REPLACE THE
INTEREST RATE CAP AGREEMENT WITH A REPLACEMENT INTEREST RATE CAP AGREEMENT NOT
LATER THAN TEN (10) BUSINESS DAYS FOLLOWING RECEIPT OF NOTICE FROM LENDER OF
SUCH DOWNGRADE, WITHDRAWAL OR QUALIFICATION.
(D)
IN THE EVENT THAT BORROWER FAILS TO PURCHASE AND DELIVER TO LENDER
THE INTEREST RATE CAP AGREEMENT OR FAILS TO MAINTAIN THE INTEREST RATE CAP
AGREEMENT IN ACCORDANCE WITH THE TERMS AND PROVISIONS OF THIS AGREEMENT, LENDER
MAY PURCHASE THE INTEREST RATE CAP AGREEMENT AND THE COST INCURRED BY LENDER IN
PURCHASING SUCH INTEREST RATE CAP AGREEMENT SHALL BE PAID BY BORROWER TO LENDER
WITH INTEREST THEREON AT THE DEFAULT RATE FROM THE DATE SUCH COST WAS INCURRED
BY LENDER UNTIL SUCH COST IS REIMBURSED BY BORROWER TO LENDER.
(E)
IN CONNECTION WITH THE INTEREST RATE CAP AGREEMENT, BORROWER SHALL
OBTAIN AND DELIVER TO LENDER AN OPINION FROM COUNSEL (WHICH COUNSEL MAY BE
IN-HOUSE COUNSEL FOR THE COUNTERPARTY) FOR THE COUNTERPARTY (UPON WHICH LENDER
AND ITS SUCCESSORS AND ASSIGNS MAY RELY) WHICH SHALL PROVIDE, IN RELEVANT PART,
THAT:
(I)
THE COUNTERPARTY IS DULY ORGANIZED, VALIDLY EXISTING, AND IN GOOD
STANDING UNDER THE LAWS OF ITS JURISDICTION OF INCORPORATION AND HAS THE
ORGANIZATIONAL POWER AND AUTHORITY TO EXECUTE AND DELIVER, AND TO PERFORM ITS
OBLIGATIONS UNDER, THE INTEREST RATE CAP AGREEMENT;
(II)
THE EXECUTION AND DELIVERY OF THE INTEREST RATE CAP AGREEMENT BY
THE COUNTERPARTY, AND ANY OTHER AGREEMENT WHICH THE COUNTERPARTY HAS EXECUTED
AND DELIVERED PURSUANT THERETO, AND THE PERFORMANCE OF ITS OBLIGATIONS
THEREUNDER HAVE BEEN
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AND REMAIN DULY AUTHORIZED BY ALL NECESSARY ACTION AND DO NOT CONTRAVENE ANY
PROVISION OF ITS CERTIFICATE OF INCORPORATION OR BY-LAWS (OR EQUIVALENT
ORGANIZATIONAL DOCUMENTS) OR ANY LAW, REGULATION OR CONTRACTUAL RESTRICTION
BINDING ON OR AFFECTING IT