with all other Interest Rate Cap Agreements, shall have an initial
notional amount equal to the outstanding principal balance of the Loan as of the
Closing Date.
Borrowers 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 all Interest Rate Cap
Agreements, and shall deliver to Lender an executed counterpart of such Interest
Rate Cap Agreements (which shall, by their respective terms, authorize the
assignment to Lender and require that payments be deposited directly into the
Lockbox Account).
(B)
BORROWERS SHALL COMPLY WITH ALL OF THEIR
OBLIGATIONS UNDER THE TERMS AND PROVISIONS OF EACH INTEREST RATE CAP AGREEMENT.
ALL AMOUNTS PAID BY THE COUNTERPARTY UNDER EACH INTEREST RATE CAP AGREEMENT TO
BORROWERS OR LENDER SHALL BE DEPOSITED IMMEDIATELY INTO THE LOCKBOX ACCOUNT.
BORROWERS SHALL TAKE ALL ACTIONS REASONABLY REQUESTED BY LENDER TO ENFORCE
LENDER'S RIGHTS UNDER EACH 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 OF THE RATING
OF THE ACCEPTABLE COUNTERPARTY BELOW "AA-" BY S&P OR "AA3" BY MOODY'S, BORROWERS
SHALL REPLACE THE APPLICABLE INTEREST RATE CAP AGREEMENT(S) WITH ONE OR MORE
REPLACEMENT INTEREST RATE CAP
62
AGREEMENTS NOT LATER THAN TEN (10) BUSINESS DAYS FOLLOWING RECEIPT OF NOTICE
FROM LENDER OF SUCH DOWNGRADE.
(D)
IN THE EVENT THAT BORROWERS FAIL TO PURCHASE
AND DELIVER TO LENDER ANY INTEREST RATE CAP AGREEMENT OR FAIL TO MAINTAIN EACH
INTEREST RATE CAP AGREEMENT IN ACCORDANCE WITH THE TERMS AND PROVISIONS OF THIS
AGREEMENT, AFTER TEN (10) BUSINESS DAYS NOTICE TO BORROWERS AND BORROWERS'
FAILURE TO CURE, LENDER MAY PURCHASE THE REQUIRED INTEREST RATE CAP AGREEMENT(S)
AND THE ACTUAL OUT-OF-POCKET COST INCURRED BY LENDER IN PURCHASING SUCH INTEREST
RATE CAP AGREEMENT(S) SHALL BE PAID BY BORROWERS TO LENDER WITH INTEREST THEREON
AT THE DEFAULT RATE FROM THE DATE SUCH COST WAS INCURRED BY LENDER UNTIL SUCH
ACTUAL OUT-OF-POCKET COST IS REIMBURSED BY BORROWERS TO LENDER.
(E)
IN CONNECTION WITH EACH INTEREST RATE CAP
AGREEMENT, BORROWERS 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, SUCH INTEREST RATE CAP AGREEMENT;
(II)
THE EXECUTION AND DELIVERY OF SUCH
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 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