Common use of Interest Rate Cap Clause in Contracts

Interest Rate Cap. (a) On the date hereof, Xxxxxxxx has delivered an Interest Rate Protection Agreement to Administrative Agent, which has been approved by Administrative Agent (the “Closing Date Interest Rate Protection Agreement”). At all times while the Closing Date Interest Rate Protection Agreement remains in effect, the notional amount required hereunder shall be as set forth in such Closing Date Interest Protection Agreement, except, if at any time the then- notional amount provided in the Closing Date Interest Protection Agreement is less than the sum of (x) the Outstanding Principal Balance plus (y) the Building Loan Outstanding Principal Balance, Administrative Agent, shall have the right, at any time, to require that Borrower deliver a supplemental Interest Rate Protection Agreement such that such supplemental Interest Rate Protection Agreement, together with the Closing Date Interest Protection Agreement, have an aggregate amount equal to at least the sum of (x) the Outstanding Principal Balance plus (y) the Building Loan Outstanding Principal Balance. Following the expiration of the Closing Date -101- Interest Protection Agreement, at all times during the term of the Loan (including during any extension period), Borrower shall maintain in effect an Interest Rate Protection Agreement with a notional amount equal to at least the sum of (x) the Outstanding Principal Balance plus (y) the Building Loan Outstanding Principal Balance and with a Counterparty reasonably acceptable to Administrative Agent having a Minimum Counterparty Rating. The Interest Rate Protection Agreement shall have a strike price equal to or less than the Capped Benchmark Rate. (b) Prior to or on the Closing Date, Borrower shall have obtained the Interest Rate Protection Agreement with a term until the Initial Maturity Date. Borrower shall, as a condition to Borrower exercising its right to extend the term of the Loan for each Extension Period, purchase a new Interest Rate Protection Agreement having a term ending not earlier than the First Extension Maturity Date or the Second Extension Maturity Date, as applicable, and having a strike price equal to the Capped Benchmark Rate. In the event of any withdrawal of the rating of such Counterparty by any Rating Agency or downgrade of the rating of such Counterparty by any Rating Agency below the Minimum Counterparty Rating, Borrower shall notify Administrative Agent of such downgrade and shall replace the Interest Rate Protection Agreement not later than ten (10) Business Days following such downgrade or withdrawal with an Interest Rate Protection Agreement in form and substance reasonably satisfactory to Administrative Agent (and meeting the requirements set forth in this Section 4.1.11) from a Counterparty having a Minimum Counterparty Rating; provided, however, that if any Rating Agency withdraws or downgrades the credit rating of the Counterparty below the Minimum Counterparty Rating, Borrower shall not be required to replace the Counterparty under the Interest Rate Protection Agreement provided that within ten (10) Business Days following such downgrade or withdrawal, (y) such Counterparty or an Affiliate thereof posts additional collateral acceptable to Administrative Agent from time to time securing its obligations under the Interest Rate Protection Agreement and shall enter into an ISDA Credit Support Annex (CSA) governed by the law of the State of New York with respect to such additional collateral or (z) an Affiliate of such Counterparty with a Minimum Counterparty Rating delivers a guaranty acceptable to Administrative Agent guaranteeing such Counterparty’s obligations under the Interest Rate Protection Agreement and shall enter into an ISDA Credit Support Annex (CSA) governed by the law of the State of New York with respect to such guaranty. Any new or replacement Interest Rate Protection Agreement required to be delivered by Borrower to Administrative Agent hereunder shall be in form and substance substantially similar to the Interest Rate Protection Agreement in effect as of the date hereof and Borrower shall provide Administrative Agent with an Assignment of Protection Agreement with respect thereto in the form of the Assignment of Protection Agreement, together with an opinion of counsel with respect thereto reasonably acceptable to Administrative Agent. At the time Borrower enters into any Interest Rate Protection Agreement, the Counterparty and Borrower shall each be an “Eligible Contract Participant”, as such term is defined under the Commodity Exchange Act, and shall otherwise satisfy all requirements under the Xxxx Xxxxx Wall Street Reform and Consumer Protection Act in connection with entering into the Interest Rate Protection Agreement. (c) Borrower shall not (i) without the prior written consent of Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), materially modify, amend or supplement the terms of the Interest Rate Protection Agreement, (ii) without the prior written consent of Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), except in accordance with the terms of the Interest Rate Protection Agreement, cause the termination of the Interest Rate Protection Agreement prior to its stated -102- maturity date, (iii) without the prior written consent of Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), except as aforesaid, waive or release any material obligation of the Counterparty (or any successor or substitute party to the Interest Rate Protection Agreement) under the Interest Rate Protection Agreement, (iv) without the prior written consent of Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), consent or agree to any act or omission to act on the part of the Counterparty (or any successor or substitute party to the Interest Rate Protection Agreement) which, without such consent or agreement, would constitute a default under the Interest Rate Protection Agreement, (v) fail to exercise promptly and diligently each and every material right which it may have under the Interest Rate Protection Agreement to the extent commercially reasonable, (vi) take or intentionally omit to take any action or intentionally suffer or permit any action to be omitted or taken, the taking or omission of which would result in any right of offset against sums payable under the Interest Rate Protection Agreement or any defense by the Counterparty (or any successor or substitute party to the Interest Rate Protection Agreement) to payment, or (vii) fail to give prompt notice to Administrative Agent of any written notice of default given by or to Borrower under or with respect to the Interest Rate Protection Agreement, together with a complete copy of such notice. (d) In connection with the Interest Rate Protection Agreement delivered on the Closing Date, Borrower shall obtain and deliver to Administrative Agent an opinion of counsel from counsel (which counsel may be in-house counsel for the Counterparty) for the Counterparty upon which Administrative Agent and their successors and assigns may rely, under New York law and, if the Counterparty is a non-U.S. entity, the applicable foreign law, 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, 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 has been duly executed and delivered by the Counterparty and constitutes the legal, valid and binding obligation of the Counterparty, enforceable against the Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights 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). (e) Notwithstanding anything to the contrary contained in this Section 4.1.11 or elsewhere in this Agreement, if, at any time, Administrative Agent converts the Loan to an Alternate Rate Loan, then:

Interest Rate Cap. (a) On or prior to the date hereof, Xxxxxxxx has delivered an Interest Rate Protection Agreement to Administrative Agent, which has been approved by Administrative Agent (the “Closing Date Interest Rate Protection Agreement”). At all times while the Closing Date Interest Rate Protection Agreement remains in effectEffective Date, the notional amount required hereunder shall be as set forth in such Closing Date Interest Protection AgreementMaguire Members shall, except, if at any time on behalf of and for the then- notional amount provided in the Closing Date Interest Protection Agreement is less than the sum of (x) the Outstanding Principal Balance plus (y) the Building Loan Outstanding Principal Balance, Administrative Agent, shall have the right, at any time, to require that Borrower deliver a supplemental Interest Rate Protection Agreement such that such supplemental Interest Rate Protection Agreement, together with the Closing Date Interest Protection Agreement, have an aggregate amount equal to at least the sum of (x) the Outstanding Principal Balance plus (y) the Building Loan Outstanding Principal Balance. Following the expiration benefit of the Closing Date -101- Interest Protection AgreementSeniox Xxxxxnine Borrower and the Junior Mezzanine Borrower, at all times during the term of the Loan (including during any extension period), Borrower shall purchase and thereafter maintain in effect in accordance with the Loan Documents until the third anniversary of the Effective Date (or the date on which the Property is sold, if earlier), an interest rate cap agreement with a counterparty acceptable to the Senior Mezzanine Lender and the Junior Mezzanine Lender and having a credit rating of at least "AA" from Standard & Poor's (the "Interest Rate Protection Agreement with Cap"). The Interest Rate Cap shall have a term of at least 36 months commencing on the Effective Date and a notional amount equal to at least the sum combined principal amount of the New Mezzanine Debt on the Effective Date. The Maguire Members shall on or prior to the delivery of an Extension Noxxxx xxtend the term of the Interest Rate Cap for an additional one year period covering a notional amount equal to the combined principal amount of the New Mezzanine Debt as of the date of the Extension Notice (x) any such extension to the Outstanding Principal Balance plus (y) the Building Loan Outstanding Principal Balance and with Interest Rate Cap, a Counterparty reasonably acceptable to Administrative Agent having a Minimum Counterparty Rating"Supplemental Cap"). The Interest Rate Protection Agreement Cap shall have a LIBOR strike price equal to or less than of 400 basis points for the Capped Benchmark Rate. (b) Prior to or on first year, 500 basis points for the Closing Date, Borrower second year and 600 basis points for the third year and the Supplemental Cap shall have obtained a LIBOR strike price of 500 basis points. The Interest Rate Cap and Supplemental Cap shall be paid for by the Maguire Members in full in advance as set forth above, shall be collxxxxxxxy assigned by the Maguire Members, and, if necessary, the Senior Mezzanine Borrower anx xxx Xunior Mezzanine Borrower, to the Senior Mezzanine Lender and the Junior Mezzanine Lender as security for the New Subordinated Debt in a manner satisfactory to the Senior Mezzanine Lender and the Junior Mezzanine Lender. The failure by the Maguire Members to purchase or maintain the Interest Rate Protection Agreement Cap or any Xxxxxxmental Cap in accordance with the foregoing shall constitute a term until the Initial Maturity Date. Borrower shall, as a condition to Borrower exercising its right to extend the term of the Loan for each Extension Period, purchase a new Interest Rate Protection Agreement having a term ending not earlier than the First Extension Maturity Date or the Second Extension Maturity Date, as applicable, and having a strike price equal to the Capped Benchmark Rate. In the event of any withdrawal of the rating of such Counterparty by any Rating Agency or downgrade of the rating of such Counterparty by any Rating Agency below the Minimum Counterparty Rating, Borrower shall notify Administrative Agent of such downgrade and shall replace the Interest Rate Protection Agreement not later than ten (10) Business Days following such downgrade or withdrawal with an Interest Rate Protection Agreement in form and substance reasonably satisfactory to Administrative Agent (and meeting the requirements set forth in this Section 4.1.11) from a Counterparty having a Minimum Counterparty RatingTrigger Event; provided, however, that if any Rating Agency withdraws such Supplemental Cap or downgrades the credit rating of the Counterparty below the Minimum Counterparty Rating, Borrower shall not be required to replace the Counterparty under the Interest Rate Protection Agreement provided that within ten (10) Business Days following such downgrade or withdrawal, (y) such Counterparty or an Affiliate thereof posts additional collateral acceptable to Administrative Agent from time to time securing its obligations under Cap no longer satisfies the Interest Rate Protection Agreement and shall enter into an ISDA Credit Support Annex (CSA) governed by the law of the State of New York with respect to such additional collateral or (z) an Affiliate of such Counterparty with a Minimum Counterparty Rating delivers a guaranty acceptable to Administrative Agent guaranteeing such Counterparty’s obligations under the Interest Rate Protection Agreement and shall enter into an ISDA Credit Support Annex (CSA) governed by the law of the State of New York with respect to such guaranty. Any new or replacement Interest Rate Protection Agreement required to be delivered by Borrower to Administrative Agent hereunder shall be in form and substance substantially similar to the Interest Rate Protection Agreement in effect as of the date hereof and Borrower shall provide Administrative Agent with an Assignment of Protection Agreement with respect thereto in the form of the Assignment of Protection Agreement, together with an opinion of counsel with respect thereto reasonably acceptable to Administrative Agent. At the time Borrower enters into any Interest Rate Protection Agreement, the Counterparty and Borrower shall each be an “Eligible Contract Participant”, as such term is defined under the Commodity Exchange Act, and shall otherwise satisfy all requirements under the Xxxx Xxxxx Wall Street Reform and Consumer Protection Act in connection with entering into the Interest Rate Protection Agreement. (c) Borrower shall not (i) without the prior written consent of Administrative Agent (such consent not Loan Documents other than due to be unreasonably withheld, conditioned or delayed), materially modify, amend or supplement the terms of the Interest Rate Protection Agreement, (ii) without the prior written consent of Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), except in accordance with the terms of the Interest Rate Protection Agreement, cause the termination of the Interest Rate Protection Agreement prior to its stated -102- maturity date, (iii) without the prior written consent of Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), except as aforesaid, waive or release any material obligation of the Counterparty (or any successor or substitute party to the Interest Rate Protection Agreement) under the Interest Rate Protection Agreement, (iv) without the prior written consent of Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), consent or agree to any act or omission to act on the part of the Counterparty (or any successor or substitute party to the Interest Rate Protection Agreement) which, without such consent or agreement, would constitute a default under the Interest Rate Protection Agreement, (v) fail to exercise promptly and diligently each and every material right which it may have under the Interest Rate Protection Agreement to the extent commercially reasonable, (vi) take or intentionally omit to take any action or intentionally suffer or permit any action to be omitted or taken, the taking or omission of which would result in the Maguire Members, such event shall not constitute a Trigger Event if xxx Xxxuire Members shall, not later than 3 Business Days prior to the exxxxxxxon of any right of offset against sums payable grace period provided for under the Loan Documents obtain a replacement Supplemental Cap or Interest Rate Protection Agreement or any defense by Cap that satisfies the Counterparty (or any successor or substitute party to the Interest Rate Protection Agreement) to payment, or (vii) fail to give prompt notice to Administrative Agent of any written notice of default given by or to Borrower under or with respect to the Interest Rate Protection Agreement, together with a complete copy of such notice. (d) In connection with the Interest Rate Protection Agreement delivered on the Closing Date, Borrower shall obtain and deliver to Administrative Agent an opinion of counsel from counsel (which counsel may be in-house counsel for the Counterparty) for the Counterparty upon which Administrative Agent and their successors and assigns may rely, under New York law and, if the Counterparty is a non-U.S. entity, the applicable foreign law, which shall provide in relevant part, that: (i) the Counterparty is duly organized, validly existing, and in good standing requirements 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, 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 has been duly executed and delivered by the Counterparty and constitutes the legal, valid and binding obligation of the Counterparty, enforceable against the Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights 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). (e) Notwithstanding anything to the contrary contained in this Section 4.1.11 or elsewhere in this Agreement, if, at any time, Administrative Agent converts the Loan to an Alternate Rate Loan, then:Documents.

Interest Rate Cap. (a) On the date hereof, Xxxxxxxx has delivered an Interest Rate Protection Agreement to Administrative Agent, which has been approved by Administrative Agent (the “Closing Date Interest Rate Protection Agreement”). At all times while the Closing Date Interest Rate Protection Agreement remains in effect, the notional amount required hereunder shall be as set forth in such Closing Date Interest Protection Agreement, except, if at any time the then- notional amount provided in the Closing Date Interest Protection Agreement is less than the sum of (x) the Outstanding Principal Balance plus (y) the Building Loan Outstanding Principal Balance, Administrative Agent, shall have the right, at any time, to require that Borrower deliver a supplemental Interest Rate Protection Agreement such that such supplemental Interest Rate Protection Agreement, together with the Closing Date Interest Protection Agreement, have an aggregate amount equal to at least the sum of (x) the Outstanding Principal Balance plus (y) the Building Loan Outstanding Principal Balance. Following the expiration of the Closing Date -101- Interest Protection Agreement, at all times during the term of the Loan (including during any extension periodExtension Term), Borrower shall maintain in effect an Interest Rate Protection Agreement with a an initial notional amount equal to at least the sum original principal amount of (x) the Outstanding Principal Balance plus (y) the Building Loan Outstanding Principal Balance and with a Counterparty reasonably acceptable to Administrative Agent having a Minimum Counterparty Rating. The For the avoidance of doubt, as of the date hereof, Borrower shall only be obligated to maintain in effect an Interest Rate Protection Agreement shall have a strike price equal to or less than covering the Capped Benchmark Ratefirst two (2) years of the Loan term. (b) Prior to or on the Closing Datecommencement of the third (3rd) year of the Loan term, Borrower shall have obtained extend the term of the original Interest Rate Protection Agreement with a term until or obtain an additional or replacement Interest Rate Protection Agreement covering the Initial Maturity Datethird (3rd) year of the Loan term. Borrower shall, as As a condition to Borrower exercising its right to extend the term of the Loan for each any Extension PeriodTerm, on or prior to the then applicable Maturity Date, Borrower shall (a) extend the term of the Interest Rate Protection Agreement delivered in connection with the closing of the Loan or (b) purchase a new Interest Rate Protection Agreement having a term ending not earlier than the First Extension extended Maturity Date or the Second Extension Maturity Date, as applicable, and having a strike price equal to the then required Capped Benchmark LIBOR Rate. In the event of any withdrawal of the rating of such Counterparty by any Rating Agency or downgrade of the rating of such Counterparty by any Rating Agency below the Minimum Counterparty Rating, Borrower shall notify Administrative Agent of such downgrade and shall replace the Interest Rate Protection Agreement not later than ten (10) Business Days following receipt of notice of such downgrade or withdrawal with an Interest Rate Protection Agreement in form and substance reasonably satisfactory to Administrative Agent (and meeting the requirements set forth in this Section 4.1.114.1.18) from a Counterparty reasonably acceptable to Agent having a Minimum Counterparty Rating; provided, however, that if any Rating Agency withdraws or downgrades the credit rating of the Counterparty below the Minimum Counterparty Rating, Borrower shall not be required to replace the Counterparty under the Interest Rate Protection Agreement provided that within ten (10) Business Days following notice to Borrower of such downgrade or withdrawal, (y) such Counterparty or an Affiliate thereof posts additional collateral reasonably acceptable to Administrative Agent from time to time securing its obligations under the Interest Rate Protection Agreement and shall enter into an ISDA Credit Support Annex (CSA) governed by the law of the State of New York with respect to such additional collateral or (z) an Affiliate of such Counterparty with a Minimum Counterparty Rating delivers a guaranty acceptable to Administrative Agent guaranteeing such Counterparty’s obligations under the Interest Rate Protection Agreement and shall enter into an ISDA Credit Support Annex (CSA) governed by the law of the State of New York with respect to such guaranty. Notwithstanding the foregoing, if S&P withdraws or downgrades the long-term credit rating of such Counterparty below “BBB”, or Mxxxx’x withdraws or downgrades the long term credit rating of such Counterparty below “Baa2”, Borrower shall replace the Interest Rate Protection Agreement not later than ten (10) Business Days following receipt of notice of such downgrade, or withdrawal with an Interest Rate Protection Agreement in form and substance reasonably satisfactory to Agent (and meeting the requirements set forth in this Section 4.1.18) from a Counterparty having a Minimum Counterparty Rating. Any new or replacement Interest Rate Protection Agreement required to be delivered by Borrower to Administrative Agent hereunder shall be in form and substance substantially similar to the Interest Rate Protection Agreement in effect as of the date hereof and Borrower shall provide Administrative Agent with an a new Assignment of Rate Protection Agreement with respect thereto in substantially the form of the Assignment of Rate Protection Agreement, together with an opinion of counsel with respect thereto reasonably acceptable to Administrative Agent. At the time Borrower enters into any Interest Rate Protection Agreement, the Counterparty and Borrower shall each be an “Eligible Contract Participant”, as such term is defined under the Commodity Exchange Act, and shall otherwise satisfy all requirements under the Xxxx Dxxx Xxxxx Wall Street Reform and Consumer Protection Act in connection with entering into the Interest Rate Protection Agreement. (c) Borrower shall not (i) without the prior written consent of Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), materially modify, amend or supplement the terms of the Interest Rate Protection Agreement, (ii) without the prior written consent of Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), except in accordance with the terms of the Interest Rate Protection Agreement, cause the termination of the Interest Rate Protection Agreement prior to its stated -102- maturity date, (iii) without the prior written consent of Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), except as aforesaid, waive or release any material obligation of the Counterparty (or any successor or substitute party to the Interest Rate Protection Agreement) under the Interest Rate Protection Agreement, (iv) without the prior written consent of Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), consent or agree to any act or omission to act on the part of the Counterparty (or any successor or substitute party to the Interest Rate Protection Agreement) which, without such consent or agreement, would constitute a default under the Interest Rate Protection Agreement, (v) fail to exercise promptly and diligently each and every material right which it may have under the Interest Rate Protection Agreement to the extent commercially reasonable, (vi) take or intentionally omit to take any action or intentionally suffer or permit any action to be omitted or taken, the taking or omission of which would result in any right of offset against sums payable under the Interest Rate Protection Agreement or any defense by the Counterparty (or any successor or substitute party to the Interest Rate Protection Agreement) to payment, or (vii) fail to give prompt notice to Administrative Agent of any written notice of default given by or to Borrower under or with respect to the Interest Rate Protection Agreement, together with a complete copy of such notice. (d) In connection with the Interest Rate Protection Agreement delivered on the Closing Date, Borrower shall obtain and deliver to Administrative Agent an opinion of counsel from counsel (which counsel may be in-house counsel for the Counterparty) for the Counterparty upon which Administrative Agent and their successors and assigns may rely, under New York law and, if the Counterparty is a non-U.S. entity, the applicable foreign law, 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, 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 has been duly executed and delivered by the Counterparty and constitutes the legal, valid and binding obligation of the Counterparty, enforceable against the Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights 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). (e) Notwithstanding anything to the contrary contained in this Section 4.1.11 or elsewhere in this Agreement, if, at any time, Administrative Agent converts the Loan to an Alternate Rate Loan, then:.

Interest Rate Cap. (a) On The Transferor shall obtain Cap Agreements in favor of the date hereof, Xxxxxxxx has delivered an Interest Rate Protection Agreement to Administrative Agent, which has been approved by Administrative Agent (Trustee for the “Closing Date Interest Rate Protection Agreement”). At all times while benefit of the Closing Date Interest Rate Protection Agreement remains in effect, the Class A Certificateholders with aggregate notional amount required hereunder shall be as set forth in such Closing Date Interest Protection Agreement, except, if amounts at any time the then- notional amount provided in the Closing Date Interest Protection Agreement is less than the sum of (x) the Outstanding Principal Balance plus (y) the Building Loan Outstanding Principal Balance, Administrative Agent, shall have the right, at any time, to require that Borrower deliver a supplemental Interest Rate Protection Agreement such that such supplemental Interest Rate Protection Agreement, together with the Closing Date Interest Protection Agreement, have an aggregate amount equal to at least the sum of (x) the Outstanding Principal Balance plus (y) the Building Loan Outstanding Principal Balance. Following the expiration of the Closing Date -101- Interest Protection Agreement, at all times during the term of the Loan (including during any extension period), Borrower shall maintain in effect an Interest Rate Protection Agreement with a notional amount equal to at least the sum of (x) the Outstanding Principal Balance plus (y) the Building Loan Outstanding Principal Balance and with a Counterparty reasonably acceptable to Administrative Agent having a Minimum Counterparty Rating. The Interest Rate Protection Agreement shall have a strike price equal to or less than the Capped Benchmark Rate. (b) Prior to or on the Closing Date, Borrower shall have obtained the Interest Rate Protection Agreement with a term until the Initial Maturity Date. Borrower shall, as a condition to Borrower exercising its right to extend the term of the Loan for each Extension Period, purchase a new Interest Rate Protection Agreement having a term ending not earlier than the First Extension Maturity Date or the Second Extension Maturity Date, as applicable, and having a strike price equal to the Capped Benchmark Rate. In the event of any withdrawal of the rating of such Counterparty by any Rating Agency or downgrade of the rating of such Counterparty by any Rating Agency below the Minimum Counterparty Rating, Borrower shall notify Administrative Agent of such downgrade and shall replace the Interest Rate Protection Agreement not later than ten (10) Business Days following such downgrade or withdrawal with an Interest Rate Protection Agreement in form and substance reasonably satisfactory to Administrative Agent (and meeting the requirements set forth in this Section 4.1.11) from a Counterparty having a Minimum Counterparty RatingClass A Funded Amount then outstanding; provided, however, that if any Rating Agency withdraws or downgrades the credit rating minimum aggregate notional amount of the Counterparty below Cap Agreements on the Minimum Counterparty Rating, Borrower 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 replace the Counterparty under the Interest Rate Protection Agreement provided that within ten (10) Business Days following such downgrade or withdrawal, (y) such Counterparty or an Affiliate thereof posts additional collateral acceptable to Administrative Agent from time to time securing its obligations under the Interest Rate Protection Agreement and shall enter into an ISDA Credit Support Annex (CSA) governed by the law of the State of New York with respect to such additional collateral or (z) an Affiliate of such Counterparty with a Minimum Counterparty Rating delivers a guaranty acceptable to Administrative Agent guaranteeing such Counterparty’s obligations under the Interest Rate Protection Agreement and shall enter into an ISDA Credit Support Annex (CSA) governed by the law of the State of New York with respect to such guaranty. Any new or replacement Interest Rate Protection Agreement required to be delivered by Borrower to Administrative Agent hereunder shall be in form and substance substantially similar to the Interest Rate Protection Agreement in effect as of the date hereof and Borrower shall provide Administrative Agent with an Assignment of Protection Agreement with respect thereto in the form of the Assignment of Protection Agreement, together with an opinion of counsel with respect thereto reasonably acceptable to Administrative Agent. At the time Borrower enters into make any Interest Rate Protection Agreement, the Counterparty and Borrower shall each be an “Eligible Contract Participant”, as such term is defined under the Commodity Exchange Act, and shall otherwise satisfy all requirements under the Xxxx Xxxxx Wall Street Reform and Consumer Protection Act in connection with entering into the Interest Rate Protection Agreement. (c) Borrower shall not (i) without the prior written consent of Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), materially modify, amend or supplement the terms of the Interest Rate Protection Agreementpayments thereunder, (ii) without the prior written consent Cap Agreement shall terminate on any date on which the notional amount is reduced to zero and (iii) the Trustee, on behalf of Administrative Agent 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 (such consent not to be unreasonably withheld, conditioned or delayedas defined below), except or if no Replacement Interest Rate Cap is obtained, shall be applied in accordance with Section 4.05. The Servicer hereby represents that the terms Transferor has obtained and assigned to the Trust the Cap Agreement in favor of the Trust for the benefit of the Certificateholders. The Cap Agreement shall entitle the Trust to receive monthly the Cap Payment, if any, as set forth in the Cap Agreement. Upon the effectiveness of any Replacement Interest Rate Protection AgreementCap, cause the termination Cap Agreement being replaced shall terminate and the applicable Cap Provider shall be released of the Interest Rate Protection all future obligations thereunder, provided that such Cap Agreement prior to its stated -102- maturity date, (iii) without the prior written consent of Administrative Agent (such consent shall not be released from any obligations which have previously accrued thereunder and shall continue to be unreasonably withheld, conditioned or delayed), except obligated to perform such obligations. The Trustee hereby appoints the Servicer to act as aforesaid, waive or release any material obligation of the Counterparty (or any successor or substitute party to the Interest Rate Protection Agreement) calculation agent under the Interest Rate Protection Agreement, (iv) without the prior written consent of Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), consent or agree to any act or omission to act on the part of the Counterparty (or any successor or substitute party to the Interest Rate Protection Agreement) which, without such consent or agreement, would constitute a default under the Interest Rate Protection Agreement, (v) fail to exercise promptly and diligently each and every material right which it may have under the Interest Rate Protection Cap Agreement to the extent commercially reasonable, (vi) take or intentionally omit to take any action or intentionally suffer or permit any action to be omitted or taken, the taking or omission of which would result in any right of offset against sums payable under the Interest Rate Protection Agreement or any defense by the Counterparty (or any successor or substitute party to the Interest Rate Protection Agreement) to payment, or (vii) fail to give prompt notice to Administrative Agent of any written notice of default given by or to Borrower under or with respect to the Interest Rate Protection Agreement, together with a complete copy of such notice. (d) In connection with the Interest Rate Protection Agreement delivered on the Closing Date, Borrower shall obtain and deliver to Administrative Agent an opinion of counsel from counsel (which counsel may be in-house counsel for the Counterparty) for the Counterparty upon which Administrative Agent and their successors and assigns may rely, under New York law and, if the Counterparty is a non-U.S. entity, the applicable foreign law, 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, 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 Servicer accepts such execution, delivery or performance; and (iv) the Interest Rate Protection Agreement has been duly executed and delivered by the Counterparty and constitutes the legal, valid and binding obligation of the Counterparty, enforceable against the Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights 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). (e) Notwithstanding anything to the contrary contained in this Section 4.1.11 or elsewhere in this Agreement, if, at any time, Administrative Agent converts the Loan to an Alternate Rate Loan, then:appointment.

Interest Rate Cap. (a) On or prior to the date hereof, Xxxxxxxx has delivered an Interest Rate Protection Agreement earlier to Administrative Agent, which has been approved by Administrative Agent (the “Closing Date Interest Rate Protection Agreement”). At all times while the Closing Date Interest Rate Protection Agreement remains in effect, the notional amount required hereunder shall be as set forth in such Closing Date Interest Protection Agreement, except, if at any time the then- notional amount provided in the Closing Date Interest Protection Agreement is less than the sum occur of (x) the Outstanding Principal Balance plus thirtieth (30th) day following the LIBOR Event Date and (y) the Building Loan Outstanding Principal Balance, Administrative Agent, shall have the right, at any time, to require that Borrower deliver a supplemental Interest Rate Protection Agreement such that such supplemental Interest Rate Protection Agreement, together with the Closing Date Interest Protection Agreement, have an aggregate amount equal to at least the sum of first (x1st) the Outstanding Principal Balance plus (y) the Building Loan Outstanding Principal Balance. Following the expiration anniversary of the Closing Date -101- Interest Protection Agreement(such earlier date, at all times during the term of the Loan (including during any extension period“Cap Requirement Date”), Borrower the Borrowers shall maintain in effect enter into an Interest Rate Protection Agreement Cap with a notional amount equal to at least the sum of (x) the Outstanding Principal Balance plus (y) the Building Loan Outstanding Principal Balance and with a Counterparty reasonably acceptable to Administrative Agent having a Minimum Counterparty Rating. The Interest Rate Protection Agreement shall have a strike price equal to or less than the Capped Benchmark Rate. (b) Prior to or on the Closing Date, Borrower shall have obtained the Interest Rate Protection Agreement with a term until the Initial Maturity Date. Borrower shall, as a condition to Borrower exercising its right to extend the term of the Loan for each Extension Period, purchase a new Interest Rate Protection Agreement having a term ending not earlier than the First Extension Maturity Date or the Second Extension Maturity Date, as applicable, and having a LIBOR strike price equal to the Capped Benchmark RateStrike 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 event of any withdrawal expiration of the rating of such Counterparty by any Rating Agency or downgrade of the rating of such Counterparty by any Rating Agency below the Minimum Counterparty Rating, Borrower shall notify Administrative Agent of such downgrade and shall replace the initial Interest Rate Protection Agreement not later than 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) Business Days following such downgrade or withdrawal with an days prior to the Cap Requirement Date, the Borrowers shall provide a form of Interest Rate Protection Agreement in form and substance reasonably satisfactory to Administrative Agent Cap (and meeting the requirements set forth in this Section 4.1.11) from a Counterparty having a Minimum Counterparty Rating; provided, however, that if any Rating Agency withdraws or downgrades the credit rating summary or bid package containing all of the Counterparty below the Minimum Counterparty Rating, Borrower shall not be required to replace the Counterparty under terms of the Interest Rate Protection Agreement provided that within ten (10Cap) Business Days following such downgrade or withdrawal, (y) such Counterparty or an Affiliate thereof posts additional collateral acceptable to Administrative Agent from time to time securing its obligations under the for Agent’s review and Approval. Each Interest Rate Protection Agreement and shall enter into an ISDA Credit Support Annex Cap (CSAi) governed by the law of the State of New York with respect to such additional collateral or (z) an Affiliate of such Counterparty with a Minimum Counterparty Rating delivers a guaranty acceptable to Administrative Agent guaranteeing such Counterparty’s obligations under the Interest Rate Protection Agreement and shall enter into an ISDA Credit Support Annex (CSA) governed by the law of the State of New York with respect to such guaranty. Any new or replacement Interest Rate Protection Agreement required to be delivered by Borrower to Administrative Agent hereunder shall be in form and substance substantially similar 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 Protection Agreement in effect Cap 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 hereof of such Interest Rate Cap. The Borrowers shall collaterally assign to the Agent for its benefit and Borrower shall provide Administrative Agent with an the benefit of the Lender, pursuant to the Collateral Assignment of Protection Agreement with respect thereto 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 of the Assignment of Protection Agreement, together with an opinion of counsel with respect thereto reasonably acceptable to Administrative and substance Approved by Agent. At the time Borrower enters into any Interest Rate Protection Agreement, the Counterparty and Borrower shall each be an “Eligible Contract Participant”, as such term is defined under the Commodity Exchange Act, and shall otherwise satisfy all requirements under the Xxxx Xxxxx Wall Street Reform and Consumer Protection Act outlined in connection with entering into the Interest Rate Protection Agreement. (c) Borrower shall not clause (i) without above). If an Event of Default shall have occurred, the prior written consent of Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), materially modify, amend or supplement and/or the terms Lender may exercise all of the Interest Rate Protection Agreement, (ii) without the prior written consent rights and remedies of Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), except in accordance with the terms of the Interest Rate Protection Agreement, cause the termination of the Interest Rate Protection Agreement prior to its stated -102- maturity date, (iii) without the prior written consent of Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), except as aforesaid, waive or release any material obligation of the Counterparty (or any successor or substitute a secured party to the Interest Rate Protection Agreement) under the Interest Rate Protection Agreement, (iv) without the prior written consent of Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), consent or agree to any act or omission to act on the part of the Counterparty (or any successor or substitute party to the Interest Rate Protection Agreement) which, without such consent or agreement, would constitute a default under the Interest Rate Protection Agreement, (v) fail to exercise promptly and diligently each and every material right which it may have under the Interest Rate Protection Agreement to the extent commercially reasonable, (vi) take or intentionally omit to take any action or intentionally suffer or permit any action to be omitted or taken, the taking or omission of which would result in any right of offset against sums payable under the Interest Rate Protection Agreement or any defense by the Counterparty (or any successor or substitute party to the Interest Rate Protection Agreement) to payment, or (vii) fail to give prompt notice to Administrative Agent of any written notice of default given by or to Borrower under or UCC with respect to all such “Collateral” (as defined in the Collateral Assignment of Interest Rate Protection Agreement, together with a complete copy of such notice. (d) In connection with the Interest Rate Protection Agreement delivered on the Closing Date, Borrower shall obtain and deliver to Administrative Agent an opinion of counsel from counsel (which counsel may be in-house counsel for the Counterparty) for the Counterparty upon which Administrative Agent and their successors and assigns may rely, under New York law and, if the Counterparty is a non-U.S. entity, the applicable foreign law, 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, 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 has been duly executed and delivered by the Counterparty and constitutes the legal, valid and binding obligation of the Counterparty, enforceable against the Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at lawCap). (e) Notwithstanding anything to the contrary contained in this Section 4.1.11 or elsewhere in this Agreement, if, at any time, Administrative Agent converts the Loan to an Alternate Rate Loan, then:.