Exhibit 10.39
COLLATERAL ASSIGNMENT OF
INTEREST RATE CAP AGREEMENT
COLLATERAL ASSIGNMENT OF INTEREST RATE CAP AGREEMENT, dated as of November 29,
2006 (this "Assignment"), made by PH FEE OWNER LLC, a Delaware limited liability
company, and OPBIZ, L.L.C., a Nevada limited liability company, each having its
principal place of business at c/o OpBiz, L.L.C., 3667 Las Vegas Boulevard
South, Las Vegas, Nevada 89109 (collectively, "Assignor"), in favor of COLUMN
FINANCIAL, INC., a Delaware corporation having an address at 11 Madison Avenue,
New York, New York 10010 ("Assignee").
Capitalized terms used but not defined
herein shall have the meanings assigned such terms in that certain Loan
Agreement, dated as of the date hereof, between Assignor, as borrower, and
Assignee, as lender (as amended, restated, replaced, supplemented or otherwise
modified from time to time, the "Loan Agreement").
1.
FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED BY ASSIGNOR, ASSIGNOR HEREBY
ASSIGNS, GRANTS, DELIVERS AND TRANSFERS TO ASSIGNEE, AS COLLATERAL, ALL OF ITS
INTEREST, WHETHER NOW OWNED OR HEREAFTER ACQUIRED, NOW EXISTING OR HEREAFTER
ARISING, WHEREVER LOCATED, IN, TO AND UNDER THAT CERTAIN CONFIRMATION
(REFERENCE NUMBER DPA609207), DATED NOVEMBER 29, 2006, BETWEEN ASSIGNOR AND SMBC
DERIVATIVE PRODUCTS LIMITED, AS THE COUNTERPARTY THEREUNDER (THE "COUNTERPARTY")
(TOGETHER WITH THAT CERTAIN ISDA MASTER AGREEMENT (MULTICURRENCY-CROSS BORDER)
FORM DEEMED TO HAVE BEEN EXECUTED BY ASSIGNOR AND THE COUNTERPARTY CONCURRENTLY
WITH THE CONFIRMATION
PURSUANT TO THE TERMS OF SUCH CONFIRMATION , THE
"INTEREST RATE CAP AGREEMENT"), INCLUDING, BUT NOT LIMITED TO, ANY AND ALL
RIGHTS THAT SUCH ASSIGNOR MAY NOW OR HEREAFTER HAVE TO ANY AND ALL PAYMENTS,
DISBURSEMENTS, DISTRIBUTIONS OR PROCEEDS (COLLECTIVELY, THE "PAYMENTS") OWING,
PAYABLE OR REQUIRED TO BE DELIVERED TO ASSIGNOR ON ACCOUNT OF THE INTEREST RATE
CAP AGREEMENT WITH RESPECT TO THE PERIOD COMMENCING ON THE DATE HEREOF AND
ENDING ON THE DATE ON WHICH ASSIGNOR SHALL HAVE REPAID THE LOAN IN ITS ENTIRETY,
AND ALL PROCEEDS OF ANY OR ALL OF THE FOREGOING (COLLECTIVELY, THE "CAP
COLLATERAL").
ASSIGNOR HEREBY GRANTS TO ASSIGNEE A SECURITY INTEREST IN AND TO
THE INTEREST RATE CAP AGREEMENT, THE CAP COLLATERAL AND ALL PROCEEDS (AS DEFINED
IN THE UNIFORM COMMERCIAL CODE ADOPTED IN THE STATE OF NEW YORK (THE "UCC"))
THEREOF, TO HAVE AND TO HOLD THE SAME, UNTO ASSIGNEE, ITS SUCCESSORS AND
ASSIGNS, AND ASSIGNOR COVENANTS AND AGREES TO CAUSE ALL PAYMENTS TO BE MADE
DIRECTLY TO ASSIGNEE.
THIS ASSIGNMENT CONSTITUTES ADDITIONAL SECURITY FOR THE
OBLIGATIONS OF ASSIGNOR GOVERNED BY THE LOAN AGREEMENT AND SECURED OR EVIDENCED
BY THE OTHER LOAN DOCUMENTS.
2.
COUNTERPARTY HEREBY CONSENTS TO THE ASSIGNMENT CONTAINED
IN PARAGRAPH 1 HEREOF AND AGREES THAT IT WILL MAKE ANY PAYMENTS THAT BECOME
PAYABLE UNDER OR PURSUANT TO THE INTEREST RATE CAP AGREEMENT DIRECTLY INTO THE
CASH MANAGEMENT ACCOUNT UNTIL SUCH TIME AS THIS ASSIGNMENT IS TERMINATED OR
OTHERWISE CANCELED, AT WHICH TIME THE COUNTERPARTY WILL BE INSTRUCTED TO MAKE
PAYMENTS TO OR ON BEHALF OF ASSIGNOR.
3.
PRIOR TO THE OCCURRENCE OF AN EVENT OF DEFAULT, PAYMENTS
RECEIVED BY