ASSIGNEE SHALL BE DEPOSITED INTO THE CASH MANAGEMENT ACCOUNT AND
APPLIED TO PAYMENTS BECOMING DUE UNDER THE NOTE, AS AND WHEN SUCH PAYMENTS ARE
DUE.
UPON THE OCCURRENCE OF AN EVENT OF DEFAULT (A) PAYMENTS RECEIVED BY
ASSIGNEE MAY BE APPLIED BY ASSIGNEE TO ANY PRINCIPAL, INTEREST AND OTHER AMOUNTS
OWING BY BORROWER UNDER THE NOTE AND THE OTHER LOAN
1
DOCUMENTS IN SUCH ORDER AND PRIORITY AS ASSIGNEE SHALL DETERMINE IN ITS SOLE AND
ABSOLUTE DISCRETION AND (B) ASSIGNEE SHALL BE ENTITLED TO EXERCISE ALL REMEDIES
PROVIDED IN THE UCC WITH RESPECT TO THE SECURITY INTEREST BEING GRANTED HEREIN.
4.
ASSIGNOR HEREBY COVENANTS AND AGREES THAT ASSIGNOR SHALL
NOT, WITHOUT FIRST OBTAINING ASSIGNEE'S OR ITS SUCCESSOR'S OR ASSIGN'S WRITTEN
CONSENT, CONVEY, ASSIGN, SELL, MORTGAGE, ENCUMBER, PLEDGE, HYPOTHECATE, GRANT A
SECURITY INTEREST IN, GRANT AN OPTION OR OPTIONS WITH RESPECT TO, OR OTHERWISE
DISPOSE OF (DIRECTLY OR INDIRECTLY, VOLUNTARILY OR INVOLUNTARILY, BY OPERATION
OF LAW OR OTHERWISE, AND WHETHER OR NOT FOR CONSIDERATION) THE INTEREST RATE CAP
AGREEMENT.
ASSIGNOR AND COUNTERPARTY HEREBY COVENANT AND AGREE THAT NEITHER
ASSIGNOR NOR COUNTERPARTY SHALL, WITHOUT FIRST OBTAINING ASSIGNEE'S OR ITS
SUCCESSOR'S OR ASSIGN'S WRITTEN CONSENT, AMEND, MODIFY, CANCEL OR TERMINATE THE
INTEREST RATE CAP AGREEMENT.
ASSIGNEE AGREES TO BE BOUND BY ALL OF THE TERMS,
COVENANTS AND CONDITIONS OF THE INTEREST RATE CAP AGREEMENT.
5.
IN THE EVENT THAT FOR ANY REASON THE INTEREST RATE CAP
AGREEMENT EVER EXPIRES, OR IS TERMINATED, RESCINDED OR REVOKED AND, AS A RESULT
THEREOF, A TERMINATION FEE OR SUCH SIMILAR PAYMENT IS OWING TO ASSIGNOR 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 ASSIGNEE IN ACCORDANCE WITH
THE TERMS HEREOF; PROVIDED, THAT SO LONG AS NO EVENT OF DEFAULT HAS OCCURRED AND
IS CONTINUING, ASSIGNEE WILL (A) MAKE SUCH TERMINATION FEE OR SIMILAR PAYMENT
AVAILABLE TO ASSIGNOR TO BE APPLIED TO THE REASONABLE AND CUSTOMARY COSTS AND
EXPENSES PAYABLE BY ASSIGNOR IN CONNECTION WITH ASSIGNOR'S REPLACEMENT OF THE
INTEREST RATE CAP AGREEMENT AND (B) DISBURSE THE BALANCE OF SUCH TERMINATION FEE
OR SIMILAR PAYMENT TO ASSIGNOR IF ASSIGNOR HAS REPLACED THE INTEREST RATE CAP
AGREEMENT IN ACCORDANCE WITH THE TERMS AND PROVISIONS OF THIS ASSIGNMENT AND THE
OTHER LOAN DOCUMENTS, AND SUCH REPLACEMENT INTEREST RATE CAP AGREEMENT IS IN
FACT IN FULL FORCE AND EFFECT.
6.
ASSIGNOR REPRESENTS AND WARRANTS THAT:
(A) IT HAS THE
FULL POWER, RIGHT AND AUTHORITY TO ASSIGN ITS INTEREST IN THE CAP COLLATERAL,
(B) ASSIGNOR OWNS THE CAP COLLATERAL FREE AND CLEAR OF ALL LIENS AND CLAIMS OF
OTHERS AND ASSIGNOR 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 ASSIGNEE, (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 ASSIGNEE, (D) THE OBLIGATION OF THE
COUNTERPARTY