COLLATERAL CONSISTING OF "CASH PROCEEDS" OR "NON-CASH
PROCEEDS" AS DEFINED IN THE UCC EXCEPT IF, AND TO THE EXTENT, THE PROVISIONS OF
SECTION 9-306 OF THE UCC SHALL BE COMPLIED WITH.
(E)
EXCEPT FOR FINANCING STATEMENTS FILED OR TO
BE FILED IN FAVOR OF THE ADMINISTRATIVE AGENT AS SECURED PARTY, THERE ARE NO
FINANCING STATEMENTS UNDER THE UCC COVERING ANY OR ALL OF THE RATE CAP
COLLATERAL AND THE BORROWER SHALL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE
ADMINISTRATIVE AGENT, UNTIL PAYMENT IN FULL OF ALL OF THE OBLIGATIONS, EXECUTE
AND FILE IN ANY PUBLIC OFFICE, ANY ENFORCEABLE FINANCING STATEMENT OR STATEMENTS
COVERING ANY OR ALL OF THE RATE CAP COLLATERAL, EXCEPT FINANCING STATEMENTS
FILED OR TO BE FILED IN FAVOR OF THE ADMINISTRATIVE AGENT AS SECURED PARTY.
(5)
PAYMENTS.
IF THE BORROWER AT ANY TIME
SHALL BE ENTITLED TO RECEIVE ANY PAYMENTS WITH RESPECT TO ANY INTEREST RATE CAP
AGREEMENT, SUCH AMOUNTS SHALL, IMMEDIATELY UPON BECOMING PAYABLE TO THE
BORROWER, BE DEPOSITED BY THE APPLICABLE COUNTERPARTY INTO THE PAYMENTS ACCOUNT.
(6)
REMEDIES.
SUBJECT TO THE PROVISIONS OF THE
INTEREST RATE CAP AGREEMENTS, IF AN EVENT OF DEFAULT SHALL OCCUR AND THEN BE
CONTINUING:
(A)
THE ADMINISTRATIVE AGENT, WITHOUT OBLIGATION TO
RESORT TO ANY OTHER SECURITY, RIGHT OR REMEDY GRANTED UNDER ANY OTHER AGREEMENT
OR INSTRUMENT, SHALL HAVE THE RIGHT TO, IN ADDITION TO ALL RIGHTS, POWERS AND
REMEDIES OF A SECURED PARTY PURSUANT TO THE UCC, AT ANY TIME AND FROM TIME TO
TIME, SELL, RESELL, ASSIGN AND DELIVER, IN ITS SOLE DISCRETION, ANY OR ALL OF
THE
54
RATE CAP COLLATERAL (IN ONE OR MORE PARCELS AND AT THE SAME OR DIFFERENT TIMES)
AND ALL RIGHT, TITLE AND INTEREST, CLAIM AND DEMAND THEREIN AND RIGHT OF
REDEMPTION THEREOF, AT PUBLIC OR PRIVATE SALE, FOR CASH, UPON CREDIT OR FOR
FUTURE DELIVERY, AND IN CONNECTION THEREWITH THE ADMINISTRATIVE AGENT MAY GRANT
OPTIONS AND MAY IMPOSE REASONABLE CONDITIONS SUCH AS REQUIRING ANY PURCHASER TO
REPRESENT THAT ANY "SECURITIES" CONSTITUTING ANY PART OF THE RATE CAP COLLATERAL
ARE BEING PURCHASED FOR INVESTMENT ONLY, THE BORROWER HEREBY WAIVING AND
RELEASING ANY AND ALL EQUITY OR RIGHT OF REDEMPTION TO THE FULLEST EXTENT
PERMITTED BY THE UCC OR APPLICABLE LAW. IF ALL OR ANY OF THE RATE CAP COLLATERAL
IS SOLD BY THE ADMINISTRATIVE AGENT UPON CREDIT OR FOR FUTURE DELIVERY, THE
ADMINISTRATIVE AGENT SHALL NOT BE LIABLE FOR THE FAILURE OF THE PURCHASER TO
PURCHASE OR PAY FOR THE SAME AND, IN THE EVENT OF ANY SUCH FAILURE, THE
ADMINISTRATIVE AGENT MAY RESELL SUCH RATE CAP COLLATERAL. IT IS EXPRESSLY AGREED
THAT THE ADMINISTRATIVE AGENT MAY EXERCISE ITS RIGHTS WITH RESPECT TO LESS THAN
ALL OF THE RATE CAP COLLATERAL, LEAVING UNEXERCISED ITS RIGHTS WITH RESPECT TO
THE REMAINDER OF THE RATE CAP COLLATERAL, PROVIDED, HOWEVER, THAT SUCH PARTIAL
EXERCISE SHALL IN NO WAY RESTRICT OR JEOPARDIZE THE ADMINISTRATIVE AGENT'S RIGHT
TO EXERCISE ITS RIGHTS WITH RESPECT TO ALL OR ANY OTHER PORTION OF THE RATE CAP
COLLATERAL AT A