to any fixtures, equipment or personal property
owned by Borrower and located on and/or used in connection with the Property,
whether now existing or hereafter arising;
(D)
to the extent assignable, any and all plans, specifications,
drawings, insurance policies, warranties, guaranties, indemnities, appraisals,
engineering, environmental, soil, and/or other reports and studies, tenant
lists, books, records, correspondence, files and advertising and marketing
materials, and other documents or instruments, relating to the Property, whether
now existing or hereafter arising; and
(E)
any and all cash and non-cash proceeds of any of the foregoing,
and all claims of Borrower with respect thereto, together with all right, title
and interest of Borrower in and to any and all extensions and renewals of any of
the foregoing.
The Contracts, together with the items referred to in the foregoing paragraphs
(B), (C), (D) and (E), are sometimes collectively referred to herein as the
"General Intangibles".
This Assignment is made upon the following terms and conditions:
1.
REPRESENTATIONS AND WARRANTIES.
BORROWER REPRESENTS AND WARRANTS
TO LENDER THAT:
(A)
BORROWER HAS NOT ASSIGNED OR GRANTED, AND WILL NOT ASSIGN OR
GRANT, A SECURITY INTEREST IN ANY OF THE GENERAL INTANGIBLES TO ANYONE OTHER
THAN LENDER.
(B)
ALL SUMS DUE AND PAYABLE TO ANY CONTRACTING PARTY BY BORROWER
UNDER THE RELATED CONTRACTS HAVE BEEN PAID IN FULL.
(C)
BORROWER'S INTEREST IN THE GENERAL INTANGIBLES IS NOT SUBJECT TO
ANY CLAIM, SETOFF, LIEN, DEDUCTION OR ENCUMBRANCE OF ANY NATURE (OTHER THAN THE
ENCUMBRANCE CREATED HEREBY AND THE ENCUMBRANCES CREATED BY THE SECURITY
INSTRUMENT AND THE OTHER LOAN DOCUMENTS), AND NO OTHER PERSON HAS ANY RIGHT,
TITLE OR INTEREST IN THE GENERAL INTANGIBLES.
(D)
BORROWER HAS FULL POWER AND AUTHORITY TO MAKE THIS ASSIGNMENT,
WITHOUT THE NEED FOR ANY CONSENT THAT HAS NOT BEEN OBTAINED.
(E)
NEITHER BORROWER NOR, TO BORROWER'S KNOWLEDGE, ANY CONTRACTING
PARTY IS IN DEFAULT UNDER ANY OF THE TERMS, COVENANTS OR PROVISIONS OF ANY
CONTRACT AND BORROWER KNOWS OF NO EVENT WHICH, BUT FOR THE PASSAGE OF TIME OR
THE GIVING OF NOTICE OR BOTH, WOULD CONSTITUTE AN EVENT OF DEFAULT UNDER ANY
CONTRACT BY BORROWER OR ANY CONTRACTING PARTY.
(F)
NEITHER BORROWER NOR ANY CONTRACTING PARTY HAS COMMENCED ANY
ACTION OR GIVEN OR RECEIVED ANY NOTICE FOR THE PURPOSE OF TERMINATING ANY
CONTRACT, AND THE CONTRACTS AND,
3
TO THE EXTENT APPLICABLE, THE GENERAL INTANGIBLES ARE IN FULL FORCE AND EFFECT
AND HAVE NOT BEEN MODIFIED, AMENDED OR ASSIGNED (OTHER THAN PURSUANT TO THIS
ASSIGNMENT).
(G)
AS OF THE DATE HEREOF, THE PERMITS AND LICENSES SET FORTH ON
EXHIBIT A ATTACHED TO THIS ASSIGNMENT ARE ALL OF THE PERMITS AND LICENSES IN
EFFECT WITH RESPECT TO THE PROPERTY (NONE OF WHICH HAVE BEEN AMENDED, MODIFIED
OR OTHERWISE CHANGED IN ANY WAY), TRUE, CORRECT AND COMPLETE COPIES OF ALL SUCH
PERMITS AND LICENSES HAVE BEEN DELIVERED TO LENDER, AND BORROWER SHALL FROM TIME
TO TIME, PROMPTLY AFTER LENDER'S REQUEST THEREFOR, UPDATE SUCH EXHIBIT A SO THAT
THE SAME IS A CURRENT AND COMPLETE LIST AS OF