PERMITTED TO SATISFY ITS OBLIGATIONS TO DELIVER TO LENDER AN INTEREST
RATE PROTECTION AGREEMENT PURSUANT TO THIS SECTION 2.8 BY CAUSING GUARANTOR TO
ENTER INTO AN INTEREST RATE SWAP AGREEMENT WHICH EFFECTIVELY CAPS LIBOR AT THE
STRIKE PRICE PROVIDED SUCH INTEREST RATE SWAP AGREEMENT IS ENTERED INTO WITH AN
ACCEPTABLE COUNTERPARTY, IS ASSIGNED TO LENDER PURSUANT TO A COLLATERAL
ASSIGNMENT OF INTEREST RATE PROTECTION AGREEMENT AND OTHERWISE SATISFIES, AND IS
MAINTAINED IN ACCORDANCE WITH, THE REQUIREMENTS OF THIS SECTION 2.8 AND FURTHER
PROVIDED THAT THE BORROWER SHALL HAVE NO LIABILITIES IN CONNECTION WITH ANY SUCH
INTEREST RATE SWAP AGREEMENT AND NEITHER THE PROPERTY NOR ANY EQUITY IN THE
BORROWER SHALL SECURE GUARANTOR'S OBLIGATIONS UNDER ANY INTEREST RATE SWAP
AGREEMENT.
(B)
BORROWER SHALL COMPLY WITH ALL OF ITS OBLIGATIONS UNDER THE
TERMS AND PROVISIONS OF THE INTEREST RATE PROTECTION AGREEMENT.
ALL AMOUNTS
PAID BY ANY COUNTERPARTY UNDER THE INTEREST RATE PROTECTION AGREEMENT TO
BORROWER OR ADMINISTRATIVE AGENT FOR THE
37
benefit of Lenders shall be deposited immediately into the Restricted Account.
Borrower shall take all actions reasonably requested by Administrative Agent to
enforce Administrative Agent's and any 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 without
Administrative Agent's consent, which shall not be unreasonably withheld or
delayed.
(C)
IN THE EVENT OF ANY DOWNGRADE, WITHDRAWAL OR QUALIFICATION OF
THE RATING OF THE COUNTERPARTY BY S&P, BORROWER SHALL REPLACE THE INTEREST RATE
PROTECTION AGREEMENT WITH A REPLACEMENT INTEREST RATE PROTECTION AGREEMENT NOT
LATER THAN TEN (10) BUSINESS DAYS FOLLOWING RECEIPT OF NOTICE FROM
ADMINISTRATIVE AGENT OF SUCH DOWNGRADE, WITHDRAWAL OR QUALIFICATION.
IN
CONNECTION WITH ANY SUCH REPLACEMENT, ADMINISTRATIVE AGENT SHALL RELEASE AND/OR
TERMINATE THE ASSIGNMENT AND SECURITY INTERESTS IN FAVOR OF THE ADMINISTRATIVE
AGENT FOR THE BENEFIT OF THE LENDERS IN RESPECT OF THE INTEREST RATE PROTECTION
AGREEMENT THAT HAS BEEN REPLACED AND SHALL DIRECT THE COUNTERPARTY THEREUNDER TO
PAY ANY AMOUNTS DUE THEREUNDER TO SUCH PARTY AS BORROWER MAY DIRECT.
(D)
IN THE EVENT THAT BORROWER FAILS TO PURCHASE AND DELIVER TO
ADMINISTRATIVE AGENT THE INTEREST RATE PROTECTION AGREEMENT OR FAILS TO MAINTAIN
THE INTEREST RATE PROTECTION AGREEMENT IN ACCORDANCE WITH THE TERMS AND
PROVISIONS OF THIS AGREEMENT AND SUCH FAILURE CONTINUES FOR TEN (10) BUSINESS
DAYS AFTER NOTICE THEREOF FROM ADMINISTRATIVE AGENT, ADMINISTRATIVE AGENT MAY
PURCHASE THE INTEREST RATE PROTECTION AGREEMENT AND THE COST INCURRED BY
ADMINISTRATIVE AGENT IN PURCHASING SUCH INTEREST RATE PROTECTION AGREEMENT SHALL
BE PAID BY BORROWER TO ADMINISTRATIVE AGENT WITH INTEREST THEREON AT THE DEFAULT
RATE FROM THE DATE SUCH COST WAS INCURRED BY ADMINISTRATIVE AGENT UNTIL SUCH
COST IS REIMBURSED BY BORROWER TO ADMINISTRATIVE AGENT.
(E)
IN CONNECTION WITH THE INTEREST RATE PROTECTION AGREEMENT,
BORROWER SHALL OBTAIN AND DELIVER (PROVIDED, THAT, IF SUCH INTEREST RATE
PROTECTION AGREEMENT IS AN INTEREST RATE SWAP, BORROWER SHALL USE COMMERCIALLY
REASONABLE EFFORTS TO OBTAIN AND DELIVER) TO ADMINISTRATIVE AGENT AN OPINION
FROM COUNSEL (WHICH COUNSEL MAY