Common use of Interest Rate Cap Clause in Contracts

Interest Rate Cap. (i) The Interest Rate Cap Agreement constitutes the legal, valid and binding obligation of the Borrowers, enforceable against the Borrowers in accordance with its terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). (ii) The Rate Cap Collateral is free and clear of all claims or security interests of every nature whatsoever, except such as are created pursuant to this Agreement and the other Loan Documents, and the Borrowers have the right to pledge and grant a security interest in the same as herein provided without the consent of any other Person other than any such consent that has been obtained and is in full force and effect. (iii) The Rate Cap Collateral has been duly and validly pledged hereunder. All consents and approvals required to be obtained by the Borrowers for the consummation of the transactions contemplated by this Agreement have been obtained. (iv) Giving effect to the aforesaid grant and assignment to the Administrative Agent, the Administrative Agent has, as of the Closing Date, and as to Rate Cap Collateral acquired from time to time after such date, shall have, a valid, and upon proper filing, perfected and continuing first priority lien upon and security interest in the Rate Cap Collateral; provided that no representation or warranty is made with respect to the perfected status of the security interest of the Administrative Agent in the proceeds of Rate Cap 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. (v) 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 Borrowers shall not, without the prior written consent of the Administrative Agent, until the occurrence of the Final Collection Date, 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.

Interest Rate Cap. (i) The Each Interest Rate Cap Agreement constitutes the legal, valid and binding obligation of one or more of the Borrowers, enforceable against the Borrowers each such Borrower in accordance with its terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). (ii) The Rate Cap Collateral is free and clear of all claims or security interests of every nature whatsoever, except such as are created pursuant to this Agreement and the other Loan Documents, and the Borrowers have the right to pledge and grant a security interest in the same as herein provided without the consent of any other Person other than any such consent that has been obtained and is in full force and effect. (iii) The Rate Cap Collateral has been duly and validly pledged hereunder. All consents and approvals required to be obtained by the Borrowers for the consummation of the transactions contemplated by this Agreement have been obtained. (iv) Giving effect to the aforesaid grant and assignment to the Administrative Agent, the Administrative Agent has, as of the Closing Datedate of this Agreement, and as to Rate Cap Collateral acquired from time to time after such date, shall have, a valid, and upon proper filingfiling of any UCC financing statement required to be filed in connection therewith, perfected and continuing first priority lien upon and security interest in the Rate Cap Collateral; provided that no representation or warranty is made with respect to the perfected status of the security interest of the Administrative Agent in the proceeds of Rate Cap Collateral consisting of “cash proceeds” or “non-cash proceeds” as defined in the UCC except if, and to the extent, the provisions of Section 9-306 315 of the UCC shall be complied with. (v) 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 Borrowers shall not, without the prior written consent of the Administrative Agent, until the occurrence of the Final Collection Date, 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.

Interest Rate Cap. Prior to the Closing Date, the Debtor shall obtain and, unless otherwise consented to by the Agent, have at all times in effect, an interest rate cap agreement (ithe "INTEREST RATE CAP") with a financial institution (the "CAP COUNTERPARTY"), which shall at all times during the term of the Interest Rate Cap be acceptable to the Agent and shall have at all times a rating of at xxxxx "X0" from Xxxxx'x and "A-" from Standard & Poor's and which has irrevocably and unconditionally agreed that, prior to the date which is one year and one day after the payment in full of all Commercial Paper issued by the Company, it will not acquiesce, petition or otherwise invoke or cause the Debtor to invoke the process of any Governmental Authority for the purpose of commencing or sustaining a case against the Debtor under any Federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Debtor or any substantial part of its property or ordering the winding-up or liquidation of the affairs of the Debtor. The Interest Rate Cap Agreement constitutes shall be in form and substance acceptable to the legalAgent and shall provide (i) that all amounts payable thereunder shall be paid by the Cap Counterparty directly to the Collection Account, valid and binding obligation of the Borrowers, enforceable against the Borrowers in accordance with its terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). (ii) The Rate Cap Collateral is free and clear of all claims or security interests of every nature whatsoever, except such as are created pursuant to this Agreement and that the other Loan DocumentsDebtor's rights thereunder have been irrevocably assigned to, and the Borrowers have the right to pledge and grant a security interest in the same as herein provided without the consent of any other Person other than any such consent that therein has been obtained and is in full force and effect. granted to, the Collateral Agent for the benefit of the Secured Parties, (iii) The Rate Cap Collateral has been duly for a strike rate of not more than 6.50% per annum, and validly pledged hereunder. All consents and approvals required to be obtained by the Borrowers for the consummation of the transactions contemplated by this Agreement have been obtained. (iv) Giving effect that it covers a notional amount corresponding to an amortization schedule provided by the aforesaid grant Collateral Agent and assignment to the Administrative Agent, the Administrative Agent has, attached hereto as of the Closing Date, and as to Rate Cap Collateral acquired from time to time after such date, shall have, a valid, and upon proper filing, perfected and continuing first priority lien upon and security interest in the Rate Cap Collateral; provided that no representation or warranty is made with respect to the perfected status of the security interest of the Administrative Agent in the proceeds of Rate Cap 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. (v) 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 Borrowers shall not, without the prior written consent of the Administrative Agent, until the occurrence of the Final Collection Date, 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.Exhibit F.

Interest Rate Cap. (i) The Interest Rate Cap Agreement constitutes the legal, valid and binding obligation of the BorrowersBorrower Representative and the Counterparty, enforceable against the Borrowers Borrower Representative and the Counterparty in accordance with its terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). (ii) The Rate Cap Collateral is free and clear of all claims or security interests of every nature whatsoever, except such as are created pursuant to this Agreement and the other Loan Documents, and the Borrowers have Borrower Representative has the right to pledge and grant a security interest in the same as herein provided without the consent of any other Person other than any such consent that has been obtained and is in full force and effect. (iii) The Rate Cap Collateral has been duly and validly pledged hereunder. All consents and approvals required to be obtained by the Borrowers Borrower Representative for the consummation of the transactions contemplated by this Agreement have been obtained. (iv) Giving effect to the aforesaid grant and assignment to the Administrative Agent, the Administrative Agent has, as of the Closing Date, and as to Rate Cap Collateral acquired from time to time after such date, shall have, a valid, and upon proper filing, perfected and continuing first priority lien upon and security interest in the Rate Cap Collateral; provided that no representation or warranty is made with respect to the perfected status of the security interest of the Administrative Agent in the proceeds of Rate Cap Collateral consisting of “cash proceeds” or “non-cash proceeds” as defined in the UCC except if, and to the extent, the provisions of Section 9-306 315 of the UCC shall be complied with. (v) 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 that have not been terminated and the Borrowers Borrower Representative shall not, without the prior written consent of the Administrative Agent, until the occurrence of the Final Collection Date, 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.

Interest Rate Cap. (i) The Interest Rate Transferor shall obtain Cap Agreement constitutes the legal, valid and binding obligation of the Borrowers, enforceable against the Borrowers in accordance with its terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). (ii) The Rate Cap Collateral is free and clear of all claims or security interests of every nature whatsoever, except such as are created pursuant to this Agreement and the other Loan Documents, and the Borrowers have the right to pledge and grant a security interest in the same as herein provided without the consent of any other Person other than any such consent that has been obtained and is in full force and effect. (iii) The Rate Cap Collateral has been duly and validly pledged hereunder. All consents and approvals required to be obtained by the Borrowers for the consummation of the transactions contemplated by this Agreement have been obtained. (iv) Giving effect to the aforesaid grant and assignment to the Administrative Agent, the Administrative Agent has, as of the Closing Date, and as to Rate Cap Collateral acquired from time to time after such date, shall have, a valid, and upon proper filing, perfected and continuing first priority lien upon and security interest in the Rate Cap Collateral; provided that no representation or warranty is made with respect to the perfected status of the security interest of the Administrative Agent in the proceeds of Rate Cap 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. (v) Except for financing statements filed or to be filed Agreements in favor of the Administrative Agent as secured party, there are no financing statements under Trustee for the UCC covering any or all benefit of the Class A Certificateholders with aggregate notional amounts at any time at least equal to the Class A Funded Amount then outstanding; provided, however, that the minimum aggregate notional amount of the Cap Agreements on the first Distribution Date during the Amortization Period shall equal the Class A Funded Amount on the last day of the Revolving Period and thereafter during the Amortization Period such minimum aggregate notional amount shall reduce on each Distribution Date in an amount equal to 1/6th of such the minimum aggregate notional amount on the first Distribution Date during the Amortization Period. Each Cap Agreement shall provide that (i) the Transferor shall not be required to make any payments thereunder, (ii) the Cap Agreement shall terminate on any date on which the notional amount is reduced to zero and (iii) the Trustee, on behalf of the Class A Certificateholders, shall be entitled to receive Cap Payments from the applicable Cap Provider on the Business Day immediately preceding each Distribution Date if LIBOR for any Interest Period exceeds the Cap Rate. Each Cap Payment and any payments upon early termination of a Cap Agreement shall be deposited into the Collection Account as Available Funds. Payments received by the Trustee from a Cap Provider upon the early termination of a Cap Agreement shall be applied to the purchase of a Replacement Interest Rate Cap Collateral and the Borrowers shall not(as defined below), without the prior written consent of the Administrative Agent, until the occurrence of the Final Collection Date, execute and file in any public office, any enforceable financing statement or statements covering any or all of the if no Replacement Interest Rate Cap Collateralis obtained, except financing statements filed or shall be applied in accordance with Section 4.05. The Servicer hereby represents that the Transferor has obtained and assigned to be filed the Trust the Cap Agreement in favor of the Administrative Agent Trust for the benefit of the Certificateholders. The Cap Agreement shall entitle the Trust to receive monthly the Cap Payment, if any, as secured partyset forth in the Cap Agreement. Upon the effectiveness of any Replacement Interest Rate Cap, the Cap Agreement being replaced shall terminate and the applicable Cap Provider shall be released of all future obligations thereunder, provided that such Cap Agreement shall not be released from any obligations which have previously accrued thereunder and shall continue to be obligated to perform such obligations. The Trustee hereby appoints the Servicer to act as calculation agent under the Cap Agreement and the Servicer accepts such appointment.

Interest Rate Cap. (ia) Prior to or contemporaneously with the Closing Date, Borrower shall enter into an Interest Rate Protection Agreement with a LIBOR strike price equal to the Capped LIBOR Rate. The Interest Rate Cap Agreement (i) shall at all times be in a form and substance acceptable to Lender, (ii) shall at all times be with a Counterparty having a Minimum Counterparty Rating and otherwise reasonably acceptable to Lender, (iii) shall direct such Counterparty to deposit directly into the Clearing Account any amounts due Borrower under such Interest Rate Protection Agreement so long as any portion of the Debt exists, provided that the Debt shall be deemed to exist if the Property is transferred by judicial or non judicial foreclosure or deed in lieu thereof, (iv) shall be for a period equal to the term of the Loan and (v) shall at all times have a notional amount equal to or greater than the principal balance of the Loan and shall at all times provide for the applicable Capped LIBOR Rate. Borrower shall collaterally assign to Lender, pursuant to the Assignment of Protection Agreement, all of its right, title and interest to receive any and all payments under the Interest Rate Protection Agreement, and shall deliver to Lender an executed counterpart of such Interest Rate Protection Agreement (which shall, by its terms, authorize the assignment to Lender and require that payments be deposited directly into the Clearing Account) and shall notify the Counterparty of such assignment. (b) Borrower shall comply with all of its obligations under the terms and provisions of the Interest Rate Protection Agreement. All amounts paid by the Counterparty under the Interest Rate Protection Agreement to Borrower or Lender shall be directly deposited immediately into the Clearing Account or, during the continuance of an Event of Default, into such account as specified by Lender. Borrower shall take all actions reasonably requested by Lender to enforce Lender’s rights under the Interest Rate Protection Agreement in the event of a default by the Counterparty and shall not, without the prior written consent of Lender, waive, amend or otherwise modify any of its rights thereunder. (c) In the event of any downgrade, withdrawal or qualification of the rating of the Counterparty by any Rating Agency such that such Counterparty no longer satisfies the Minimum Counterparty Rating, Borrower shall (i) replace the Interest Rate Protection Agreement with a replacement Interest Rate Protection Agreement within ten (10) Business Days following such downgrade, withdrawal or qualification or (ii) if provided in such Interest Rate Protection Agreement, in the case of such downgrade, withdrawal or qualification of the rating of such Counterparty below the Minimum Counterparty Rating, cause the Counterparty to deliver collateral to secure Borrower’s exposure under the Interest Rate Protection Agreement in such amount and pursuant to such terms as are subject to approval of the Rating Agencies as evidenced by a Rating Agency Confirmation. (d) In the event that Borrower fails to purchase and deliver to Lender an Interest Rate Protection Agreement or fails to maintain any such Interest Rate Protection Agreement in accordance with the terms and provisions of this Agreement, Lender may purchase such Interest Rate Protection Agreement and the cost incurred by Lender in purchasing such Interest Rate Protection Agreement shall be paid by Borrower to Lender with interest thereon at the Default Rate from the date such cost was incurred by Lender until such cost is reimbursed by Borrower to Lender. (e) In connection with the Interest Rate Protection Agreement, Borrower shall obtain and deliver to Lender (i) a resolution/consent, as applicable, of the Counterparty reasonably acceptable to Lender authorizing the execution and delivery of each Interest Rate Protection Agreement, and (ii) 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 or formation and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Interest Rate Protection Agreement; (ii) the execution and delivery of the Interest Rate Protection 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 documents) or any law, regulation or contractual restriction binding on or affecting it or its property; (iii) all consents, authorizations and approvals required for the execution and delivery by the Counterparty of the Interest Rate Protection Agreement, and any other agreement which the Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any governmental authority or regulatory body is required for such execution, delivery or performance; and (iv) the Interest Rate Protection Agreement, and any other agreement which the Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Counterparty and constitutes the legal, valid and binding obligation of the BorrowersCounterparty, enforceable against the Borrowers Counterparty in accordance with its terms, subject only to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). (iif) The Rate Cap Collateral At such time as the Loan is free repaid in full, all of Lender’s right, title and clear of all claims or security interests of every nature whatsoever, except such as are created pursuant to this Agreement and the other Loan Documents, and the Borrowers have the right to pledge and grant a security interest in the same as herein provided without the consent of any other Person other than any such consent that has been obtained and is in full force and effect. (iii) The Rate Cap Collateral has been duly and validly pledged hereunder. All consents and approvals required to be obtained by the Borrowers for the consummation of the transactions contemplated by this Agreement have been obtained. (iv) Giving effect to the aforesaid grant and assignment to the Administrative Agent, the Administrative Agent has, as of the Closing Date, and as to Rate Cap Collateral acquired from time to time after such date, shall have, a valid, and upon proper filing, perfected and continuing first priority lien upon and security interest in the Rate Cap Collateral; provided that no representation or warranty is made with respect to the perfected status of the security interest of the Administrative Agent in the proceeds of Rate Cap 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 Interest Rate Protection Agreement shall terminate and Lender shall execute and deliver such documents as may be required to evidence Lender’s release of the UCC shall be complied withInterest Rate Protection Agreement and to notify Counterparty of such release. (v) 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 Borrowers shall not, without the prior written consent of the Administrative Agent, until the occurrence of the Final Collection Date, 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.

Interest Rate Cap. (i) The Interest Rate Cap Agreement constitutes At closing, Borrower shall purchase from a counterparty with an unqualified credit rating of “AA-” from Standard & Poor’s Ratings Group and “Aa3” from Xxxxx’x Investors Service an interest rate cap with a notional amount equal to the legal, valid Principal Amount and binding obligation a LIBOR strike price equal to 5% for the remaining term of the Borrowers, enforceable against the Borrowers Loan with payments and interest period calculations in accordance with its terms, subject only the Loan documentation. Amortization: None Origination Fee: A total of 1.00% of the Principal Amount. A portion of the Origination Fee equal to applicable bankruptcy, insolvency $620,000 shall be paid at the time of the acceptance of the Commitment and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). (ii) The Rate Cap Collateral is free and clear of all claims or security interests of every nature whatsoevershall be non-refundable, except such as are created pursuant to this Agreement and the other Loan Documents, and the Borrowers have the right to pledge and grant a security interest that in the same as event that the Loan does not close because Lender determines not to proceed with the Loan based on provisions set forth herein provided without or imposes reserve requirements greater than the consent of dollar amounts specified herein or Borrower is unable to fulfill any other Person other than any such consent that has been obtained and is in full force and effect. (iii) The Rate Cap Collateral has been duly and validly pledged hereunder. All consents and approvals required to be obtained by the Borrowers for the consummation closing requirements of the transactions contemplated by this Agreement have been obtained. Lender (ivwhether or not set forth herein) Giving effect to for any reason that is not within the aforesaid grant and assignment to the Administrative AgentBorrower’s reasonable control, the Administrative Agent has, as portion of the Closing DateApplication Fee paid to Lender shall be returned to Borrower except to any portion thereof that is necessary to reimburse Lender for expenses reimbursable to Lender hereunder that have not been paid from the Application Deposit. In the event the Loan does not close, and the paid portion of the Origination Fee may be credited against a future line of credit facility as to Rate Cap Collateral acquired from time to time after such date, shall have, a valid, and upon proper filing, perfected and continuing first priority lien upon and security interest set forth in the Rate Cap Collateral; provided that no representation or warranty is made with respect to the perfected status IPO Letter. The remaining portion of the security interest Origination Fee shall be paid at closing of the Administrative Agent Loan and only if the Loan closing xxxxxx.xx the event that the Loan does not close because Lender Exit Fee: 1.00% of the Principal Amount payable at the earlier to occur of repayment or the maturity date; provided, however, there shall be no exit fee due in the proceeds of Rate Cap 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 event that Lender provides permanent takeout financing of the UCC shall be complied with. (v) 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 Borrowers shall not, without the prior written consent of the Administrative Agent, until the occurrence of the Final Collection Date, 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.Loan

Interest Rate Cap. (a) On or prior to the earlier to occur of (x) the thirtieth (30th) day following the LIBOR Event Date and (y) the first (1st) anniversary of the Closing Date (such earlier date, the “Cap Requirement Date”), the Borrowers shall enter into an Interest Rate Cap with a LIBOR strike price equal to the Strike Price and with a term that expires no earlier than the second (2nd) anniversary of the Closing Date. In addition, at least thirty (30) days prior to the expiration of the initial Interest Rate Cap or any Replacement Interest Rate Cap, the Borrowers shall be required to extend such Interest Rate Cap or Replacement Interest Rate Cap or enter into one or more Replacement Interest Rate Caps with a term of at least one (1) year. At least ten (10) days prior to the Cap Requirement Date, the Borrowers shall provide a form of Interest Rate Cap (or summary or bid package containing all of the terms of the Interest Rate Cap) for Agent’s review and Approval. Each Interest Rate Cap (i) The shall be in form and substance Approved by the Agent, (ii) shall be with an Acceptable Counterparty, (iii) shall direct such Acceptable Counterparty to deposit any amounts due to the Borrowers under such Interest Rate Cap Agreement directly into the Cash Management Account so long as any portion of the Obligations remain outstanding, (iv) shall have a LIBOR strike price equal to the Strike Price, and (v) shall have an initial notional principal amount equal to the Outstanding Principal Balance as of the date of such Interest Rate Cap. The Borrowers shall collaterally assign to the Agent for its benefit and the benefit of the Lender, pursuant to the Collateral Assignment of Interest Rate Cap, all of their right, title and interest to receive any and all payments under each Interest Rate Cap, and shall deliver to the Agent an executed counterpart of each Interest Rate Cap (which shall, by its terms, authorize the assignment to the Agent, require that payments be deposited directly into the Cash Management Account, as outlined in clause (iii) above, and otherwise be in the form and substance Approved by Agent, as outlined in clause (i) above). If an Event of Default shall have occurred, the Agent and/or the Lender may exercise all of the rights and remedies of a secured party under the UCC with respect to all such “Collateral” (as defined in the Collateral Assignment of Interest Rate Cap). (b) The Borrowers shall comply with all of their obligations under the terms and provisions of each Interest Rate Cap. All amounts paid by the Counterparty under each Interest Rate Cap to the Borrowers or the Agent shall be immediately deposited into the Cash Management Account. The Borrowers shall take all actions reasonably requested by the Agent to enforce the Agent’s and the Lender’s rights under the Interest Rate Cap in the event of a default by the Counterparty and shall not terminate, waive, amend or otherwise modify any of its rights thereunder or release the Acceptable Counterparty from any of its obligations thereunder. Each Borrower hereby irrevocably, in its own name or otherwise, authorizes and empowers the Agent and transfers unto the Agent, and constitutes and appoints the Agent its true and lawful attorney-in-fact, and as its agent, irrevocably, with full power of substitution for such Borrower and in the name of such Borrower, exercisable following the occurrence of any Event of Default, (i) to exercise and enforce every right, power, remedy, authority, option and privilege of the Borrowers under the Interest Rate Cap (from and after the initial Interest Rate Cap is obtained), including any power to amend, modify or terminate the Interest Rate Cap, or to give any notices, or to take any action resulting in such amendment, modification or termination and (ii) in order to more fully vest in the Agent and the Lender the rights and remedies provided for herein, to exercise all of the rights, remedies and powers granted to the Agent and the Lender in this Agreement, and each Borrower further authorizes and empowers the Agent, as such Borrower’s attorney-in-fact, and as its agent, irrevocably, with full power of substitution for such Borrower and in the name of such Borrower, to give any authorization, to furnish any information, to make any demands, to execute any instruments and to take any and all other action on behalf of and in the name of such Borrower which in the opinion of the Agent may be necessary or appropriate to be given, furnished, made, exercised or taken under the Interest Rate Cap, in order to comply therewith, to perform the conditions thereof or to prevent or remedy any default by the Borrowers thereunder or to enforce any of the rights of the Borrowers thereunder. In furtherance of the foregoing, the Agent and the Lender may exercise all of the rights and remedies of a secured party under the UCC. The Agent may, without notice to, or assent by, any Borrower or any other Person (to the extent permitted by law), but without affecting any of the Obligations, in the name of any Borrower or in the name of the Agent, notify the Acceptable Counterparty, or if applicable, any other counterparty to the Interest Rate Cap, to make payment and performance directly to the Agent; extend the time of payment and performance of, compromise or settle for cash, credit or otherwise, and upon any terms and conditions, any obligations owing to the Borrowers, or claims of such Borrower, under the Interest Rate Cap; file any claims, commence, maintain or discontinue any actions, suits or other proceedings deemed by the Agent necessary or advisable for the purpose of collecting upon or enforcing the Interest Rate Cap; and execute any instrument and do all other things deemed necessary and proper by the Agent to protect and preserve and realize upon the “Collateral” (as defined in the Collateral Assignment of Interest Rate Cap). Each Borrower confirms and agrees that each of the foregoing powers-of-attorney is and shall be irrevocable and considered to be coupled with an interest. (c) In the event of any downgrade, withdrawal or qualification of the rating of the Counterparty under any Interest Rate Cap by S&P or Xxxxx’x below the minimum rating required to qualify as an Acceptable Counterparty, the Borrowers shall, not later than ten (10) Business Days following its knowledge of such downgrade, withdrawal or qualification, either (i) replace such Interest Rate Cap with a Replacement Interest Rate Cap, or (ii) cause the Counterparty under such Interest Rate Cap to collateralize its obligations thereunder in a manner acceptable to the Agent. (d) In the event that the Borrowers fail to purchase and deliver to the Agent any Interest Rate Cap or fail to maintain any Interest Rate Cap in accordance with the terms and provisions of this Agreement, from and after the Cap Requirement Date, the Agent may purchase such Interest Rate Cap and the costs incurred by the Agent in purchasing such Interest Rate Cap shall be paid by the Borrowers to the Agent with interest thereon at the Default Rate from the date such cost was incurred by the Agent until such cost is reimbursed by the Borrowers to the Agent. (e) Promptly (and in no event more than five (5) Business Days) following the purchase of each Interest Rate Cap, the Borrowers shall obtain and deliver to the Agent an opinion from counsel (which counsel may be in-house counsel for the Counterparty) for the Counterparty (upon which the Agent, the Lender and their respective successors and assigns may rely) thereunder acceptable to the Agent 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; (ii) the execution and delivery of such Interest Rate Cap by the Counterparty, and any other agreements 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 documents) or any law, regulation or contractual restriction binding on or affecting it or its property; (iii) all consents, authorizations and approvals required for the execution and delivery by the Counterparty of such Interest Rate Cap, and any other agreement which the Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action, and no notice to or filing with any governmental authority or regulatory body, is required for such execution, delivery or performance; and (iv) such Interest Rate Cap, and any other agreements which the Counterparty has executed and delivered pursuant thereto, have been duly executed and delivered by the Counterparty and constitute the legal, valid and binding obligation obligations of the BorrowersCounterparty, enforceable against the Borrowers Counterparty in accordance with its their respective terms, subject only to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). (ii) The Rate Cap Collateral is free and clear of all claims or security interests of every nature whatsoever, except such as are created pursuant to this Agreement and the other Loan Documents, and the Borrowers have the right to pledge and grant a security interest in the same as herein provided without the consent of any other Person other than any such consent that has been obtained and is in full force and effect. (iii) The Rate Cap Collateral has been duly and validly pledged hereunder. All consents and approvals required to be obtained by the Borrowers for the consummation of the transactions contemplated by this Agreement have been obtained. (iv) Giving effect to the aforesaid grant and assignment to the Administrative Agent, the Administrative Agent has, as of the Closing Date, and as to Rate Cap Collateral acquired from time to time after such date, shall have, a valid, and upon proper filing, perfected and continuing first priority lien upon and security interest in the Rate Cap Collateral; provided that no representation or warranty is made with respect to the perfected status of the security interest of the Administrative Agent in the proceeds of Rate Cap 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. (v) 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 Borrowers shall not, without the prior written consent of the Administrative Agent, until the occurrence of the Final Collection Date, 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.

Interest Rate Cap. (i) The Each Interest Rate Cap Agreement constitutes the legal, valid and binding obligation of one or more of the Borrowers, enforceable against the Borrowers each such Borrower in accordance with its terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).. ​ (ii) The Rate Cap Collateral is free and clear of all claims or security interests of every nature whatsoever, except such as are created pursuant to this Agreement and the other Loan Documents, and the Borrowers have the right to pledge and grant a security interest in the same as herein provided without the consent of any other Person other than any such consent that has been obtained and is in full force and effect. (iii) The Rate Cap Collateral has been duly and validly pledged hereunder. All consents and approvals required to be obtained by the Borrowers for the consummation of the transactions contemplated by this Agreement have been obtained.. ​ (iv) Giving effect to the aforesaid grant and assignment to the Administrative Agent, the Administrative Agent has, as of the Closing Datedate of this Agreement, and as to Rate Cap Collateral acquired from time to time after such date, shall have, a valid, and upon proper filingfiling of any UCC financing statement required to be filed in connection therewith, perfected and continuing first priority lien upon and security interest in the Rate Cap Collateral; provided that no representation or warranty is made with respect to the perfected status of the security interest of the Administrative Agent in the proceeds of Rate Cap Collateral consisting of “cash proceeds” or “non-cash proceeds” as defined in the UCC except if, and to the extent, the provisions of Section 9-306 315 of the UCC shall be complied with.. ​ (v) 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 Borrowers shall not, without the prior written consent of the Administrative Agent, until the occurrence of the Final Collection Date, 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.. ​

Interest Rate Cap. (ia) If at any time during the Term of the Loan, the LIBOR Interest Rate shall equal or exceed a rate per annum equal to one and one-half percent (1.5%), then Borrower shall, within fifteen (15) Business Days of Lender’s written request, enter into an Interest Rate Protection Agreement with a LIBOR strike price equal to the Capped LIBOR Rate. The Interest Rate Cap Agreement (i) shall at all times be in a form and substance acceptable to Lender, (ii) shall at all times be with a Counterparty acceptable to Lender having a Minimum Counterparty Rating, (iii) shall direct such Counterparty to deposit directly into the Clearing Account any amounts due Borrower under such Interest Rate Protection Agreement so long as any portion of the Debt exists, provided that the Debt shall be deemed to exist if the Property is transferred by judicial or non judicial foreclosure or deed in lieu thereof, (iv) shall be for a period equal to the term of the Loan and (v) shall at all times have a notional amount equal to or greater than the principal balance of the Loan and shall at all times provide for the applicable Capped LIBOR Rate. Borrower shall collaterally assign to Lender, pursuant to the Assignment of Protection Agreement substantially in the form attached hereto as Exhibit A (the “Assignment of Protection Agreement”), all of its right, title and interest to receive any and all payments under the Interest Rate Protection Agreement, and shall deliver to Lender an executed counterpart of such Interest Rate Protection Agreement (which shall, by its terms, authorize the assignment to Lender and require that payments be deposited directly into the Clearing Account) and shall notify the Counterparty of such assignment. (b) Borrower shall comply with all of its obligations under the terms and provisions of the Interest Rate Protection Agreement. All amounts paid by the Counterparty under the Interest Rate Protection Agreement to Borrower or Lender shall be directly deposited immediately into the Clearing Account or, during the continuance of an Event of Default, into such account as specified by Lender. Borrower shall take all actions reasonably requested by Lender to enforce Lender’s rights under the Interest Rate Protection 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, withdrawal or qualification of the rating of the Counterparty by any Rating Agency such that such Counterparty no longer satisfies the Minimum Counterparty Rating, Borrower shall (i) replace the Interest Rate Protection Agreement with a replacement Interest Rate Protection Agreement within ten (10) Business Days following such downgrade, withdrawal or qualification and pledge same to Lender pursuant to an assignment of interest rate protection agreement in the form of the Assignment of Protection Agreement or such other commercially reasonable assignment form as is then generally utilized by Lender or (ii) if provided in such Interest Rate Protection Agreement, in the case of such downgrade, withdrawal or qualification of the rating of such Counterparty below the Minimum Counterparty Rating, cause the Counterparty to deliver collateral to secure Borrower’s exposure under the Interest Rate Protection Agreement in such amount and pursuant to such terms as are subject to approval of the Rating Agencies as evidenced by a Rating Agency Confirmation. (d) In the event that Borrower fails to purchase and deliver to Lender an Interest Rate Protection Agreement or fails to maintain any such Interest Rate Protection Agreement in accordance with the terms and provisions of this Agreement, Lender may purchase such Interest Rate Protection Agreement after delivering to Borrower written notice of such failure by Borrower and giving Borrower five (5) Business Days to cure such failure, and the cost incurred by Lender in purchasing such Interest Rate Protection Agreement shall be paid by Borrower to Lender with interest thereon at the Default Rate from the date such cost was incurred by Lender until such cost is reimbursed by Borrower to Lender. (e) In connection with the Interest Rate Protection Agreement, Borrower shall obtain and deliver to Lender (i) a resolution/consent, as applicable, of the Counterparty authorizing the delivery of each Interest Rate Protection Agreement acceptable to Lender, and (ii) 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 or formation and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Interest Rate Protection Agreement; (ii) the execution and delivery of the Interest Rate Protection 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 documents) or any law, regulation or contractual restriction binding on or affecting it or its property; (iii) all consents, authorizations and approvals required for the execution and delivery by the Counterparty of the Interest Rate Protection Agreement, and any other agreement which the Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any governmental authority or regulatory body is required for such execution, delivery or performance; and (iv) the Interest Rate Protection Agreement, and any other agreement which the Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Counterparty and constitutes the legal, valid and binding obligation of the BorrowersCounterparty, enforceable against the Borrowers Counterparty in accordance with its terms, subject only to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights of creditors generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). (iif) The Rate Cap Collateral At such time as the Loan is free repaid in full, all of Lender’s right, title and clear of all claims or security interests of every nature whatsoever, except such as are created pursuant to this Agreement and the other Loan Documents, and the Borrowers have the right to pledge and grant a security interest in the same as herein provided without the consent of any other Person other than any such consent that has been obtained and is in full force and effect. (iii) The Rate Cap Collateral has been duly and validly pledged hereunder. All consents and approvals required to be obtained by the Borrowers for the consummation of the transactions contemplated by this Agreement have been obtained. (iv) Giving effect to the aforesaid grant and assignment to the Administrative Agent, the Administrative Agent has, as of the Closing Date, and as to Rate Cap Collateral acquired from time to time after such date, shall have, a valid, and upon proper filing, perfected and continuing first priority lien upon and security interest in the Rate Cap Collateral; provided that no representation or warranty is made with respect to the perfected status of the security interest of the Administrative Agent in the proceeds of Rate Cap 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 Interest Rate Protection Agreement shall terminate and Lender shall execute and deliver such documents as may be required to evidence Lender’s release of the UCC shall be complied withInterest Rate Protection Agreement and to notify Counterparty of such release. (v) 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 Borrowers shall not, without the prior written consent of the Administrative Agent, until the occurrence of the Final Collection Date, 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.