Swap Transactions. (a) Borrower may, but shall not be required to, enter into an Swap Transaction with a Lender acceptable to the Required Lenders (such financial institution is referred to herein as “Swap Bank”). The Lenders agree that the Swap Bank may be one of the Agents or an Affiliate of the Agents. Borrower agrees that if Borrower executes an Swap Transaction, the provisions of this Section 1.19 shall govern and apply to such Swap Transaction. Borrower acknowledges and agrees that the failure of Borrower to comply with its obligations under the Swap Transaction and to make payments when due thereunder, will be a default under this Loan and Lenders may advance funds, on Borrower’s behalf to cure Borrower’s default under the Swap Transaction. On the terms and subject to the provisions of this Agreement, Lenders will make advances from interest reserve for periodic payments under the Swap Transaction as and when they become due. All amounts advanced by Lenders to Swap Bank, Borrower or others in respect of Borrower’s obligations under the Swap Transaction shall be added to the Loan and shall be deemed a part of the Obligations secured by the Deed of Trust and the other Loan Documents. All amounts payable to Borrower pursuant to the Swap Transaction shall be paid to Administrative Agent for the ratable benefit of Lenders and applied by Lenders to the payment of interest on the Loan or other costs of the Property. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap Transaction, Borrower shall not modify or terminate the Swap Transaction without the prior written consent of Administrative Agent. (b) As additional security for the obligations of Borrower under the Loan Documents, Borrower hereby transfers, assigns, and conveys to Administrative Agent for the ratable benefit of Lenders, subject to the terms and conditions contained herein, all of Borrower’s rights, titles and interests, but not its obligations, duties or liabilities for any breach, in, under and to the Swap Transaction, any and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunder, and all proceeds of the foregoing. Administrative Agent shall have the right at any time (but shall have no obligation) to take in its name or in the name of Borrower such action as Administrative Agent may at any time determine to be necessary or advisable to cure any default under or with respect to the Swap Transaction or to protect the rights of Borrower or Swap Bank thereunder; provided, however, that prior to the occurrence of a Default, Administrative Agent shall give prior written notice to Borrower before taking any such action. Neither Administrative Agent or Lenders shall incur any liability if any action so taken by Administrative Agent or on its behalf shall prove to be inadequate or invalid, and Borrower agrees to hold Administrative Agent and Lenders free and harmless against and from any loss, cost, liability or expense (including, but not limited to, attorneys’ fees and expenses) incurred in connection with any such action, as provided in this Agreement. It is agreed and understood that, in addition to any and all other remedies to which Administrative Agent and Lenders are entitled at law or in equity, Administrative Agent and Lenders shall have all rights and benefits to which a secured party is entitled at law or in equity, including, without limitation under the Uniform Commercial Code as adopted and in effect in the State of Texas and upon any foreclosure by Lenders of the lien under the Deed of Trust, all right, title and interest of Borrower in and to the Swap Transaction and any and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunder, and all proceeds of the foregoing, shall automatically be conveyed in connection therewith, unless prior to such foreclosure, Administrative Agent elects to exclude Borrower’s right, title and interest in the Swap Transaction from such foreclosure. (c) Borrower hereby constitutes and appoints Administrative Agent as Borrower’s true and lawful attorney, with the full power of substitution, for it and in its name, place and stead, or otherwise, on behalf and for the benefit of Administrative Agent, to exercise, at the election of Administrative Agent, any and all rights and remedies of Borrower under the Swap Transaction, including, without limitation, making any payments thereunder and consummating any transactions contemplated thereby, from time to time to institute and prosecute in the name and at the expense of Borrower, or otherwise, but for the benefit of Administrative Agent and Lenders, any and all proceedings at law, in equity, or otherwise, that Administrative Agent may deem proper in order to collect, assert or enforce any claim, right or title, of any kind, in and to the Swap Transaction hereby assigned and conveyed, or intended so to be, and to defend and compromise, at the election of Administrative Agent, any and all actions, suits or proceedings with respect to the Swap Transaction, and generally to do all and any such action in relation thereto as Administrative Agent shall deem advisable; and Borrower hereby declares that the appointment hereby made and powers hereby granted are coupled with an interest and are and shall be irrevocable by Borrower in any manner, or for any reason. Administrative Agent may exercise its rights under this Section only after the occurrence and during the continuation of a Default under any of the Loan Documents.
Appears in 1 contract
Samples: Construction Loan Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Swap Transactions. (a) Borrower may, but shall not be required to, may enter into an one or more Swap Transaction Transactions and Swap Contracts with a Lender the Swap Counterparty on terms that are acceptable to Swap Counterparty in its sole discretion for the Required Lenders (purpose of hedging and protecting against interest rate fluctuation risks with respect to the Loan. Upon the Maturity Date, or such financial institution is referred to herein as “Swap Bank”). The Lenders agree earlier date that the Swap Bank may be one Loan becomes due by reason of an Event of Default, or otherwise, or upon payment of the Agents or an Affiliate of the Agents. Borrower agrees Loan in full, Lender may direct that if Borrower executes an all existing Swap TransactionContracts be broken and discontinued, the provisions of this Section 1.19 shall govern and apply any and all breakage fees, discontinuance fees, settlement obligations, and any and all other sums, fees and costs with respect to such Swap Transaction. Transactions and Swap Contracts shall become due and payable by Borrower acknowledges and agrees that in accordance with the failure of respective Swap Contract, with the Borrower to comply with its obligations under as the sole Defaulting Party as contemplated by the Swap Transaction Contract. Unless otherwise specifically agreed in writing by Borrower, Lender and to make payments when due thereunderSwap Counterparty, will be a default under this Loan and Lenders may advance funds, on Borrower’s behalf to cure Borrower’s default under the Swap Transaction. On the terms and subject to the provisions of this Agreement, Lenders will make advances from interest reserve for periodic payments under the Swap Transaction as and when they become due. All amounts advanced by Lenders to Swap Bank, Borrower or others in respect of Borrower’s obligations under the (including any payment obligations) with respect to any such Swap Transaction shall be added Contracts provided by or entered into with Swap Counterparty with respect to the Loan and shall be deemed a part of the Obligations secured by the Deed of Trust and the all other Loan Documents. All amounts payable to Borrower pursuant to the Swap Transaction shall be paid to Administrative Agent collateral for the ratable benefit Loan, and any default by Borrower (after the expiration of Lenders any applicable notice and applied by Lenders to cure period) under any such Swap Contracts shall, at the payment of interest on the Loan or other costs discretion of the PropertyLender, constitute an Event of Default under this Agreement. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap Transaction, Borrower shall not modify or terminate the Swap Transaction without the prior written consent of Administrative Agent.
(b) As additional security for the obligations of Borrower under the Loan Documents, Borrower hereby transfers, assigns, and conveys to Administrative Agent for the ratable benefit of LendersLender and grants to Lender a security interest in, subject to the terms and conditions contained herein, all of Borrower’s present and future rights, titles and interests, but not its obligations, duties or liabilities for any breach, in, under and to the all Swap TransactionContracts and all Swap Transactions, any and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunder, and all proceeds of the foregoing. Administrative Agent At Lender’s option, all net amounts payable to Borrower under the Swap Contract shall be paid to Lender and shall be applied to pay interest or other amounts under the Loan. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap Contract, Borrower shall not modify or terminate the Swap Contract without the prior written consent of Lender. Additionally, subject to the terms of the Swap Contract, if there is a default under any Swap Contract, Lender shall have the right at any time (but shall have no obligation) to take in its name or in the name of Borrower (or its Affiliate) such action as Administrative Agent Lender may at any time determine to be necessary or advisable to cure any default under or with respect to the any Swap Transaction Contract or to protect the rights of Borrower (or its Affiliate) or Swap Bank Counterparty thereunder; provided, however, that prior to before the occurrence of a Defaultor after the cure of an Event of Default under this Agreement, Administrative Agent Lender shall give prior written notice to Borrower before taking any such action. Neither Administrative Agent or Lenders shall incur any liability if any action so taken by Administrative Agent or on its behalf shall prove to be inadequate or invalidSolely for this purpose, and Borrower agrees to hold Administrative Agent and Lenders free and harmless against and from any loss, cost, liability or expense (including, but not limited to, attorneys’ fees and expenses) incurred in connection with any such action, as provided in this Agreement. It is agreed and understood that, in addition to any and all other remedies to which Administrative Agent and Lenders are entitled at law or in equity, Administrative Agent and Lenders shall have all rights and benefits to which a secured party is entitled at law or in equity, including, without limitation under the Uniform Commercial Code as adopted and in effect in the State of Texas and upon any foreclosure by Lenders of the lien under the Deed of Trust, all right, title and interest of Borrower in and to the Swap Transaction and any and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunder, and all proceeds of the foregoing, shall automatically be conveyed in connection therewith, unless prior to such foreclosure, Administrative Agent elects to exclude Borrower’s right, title and interest in the Swap Transaction from such foreclosure.
(c) Borrower hereby constitutes and appoints Administrative Agent as Borrower’s Lender its true and lawful attorney, -in-fact with the full power of substitution, for it which power of attorney is coupled with an interest and irrevocable by Borrower in its name, place and steadany manner, or otherwise, on behalf and for the benefit of Administrative Agentany reason, to exercise, at the election of Administrative AgentLender, any and all rights and remedies of Borrower (or its Affiliate) under the Swap TransactionContract, including, without limitation, including making any payments thereunder and consummating any transactions contemplated thereby, and to take any action that Lender may deem proper in order to collect, assert or enforce any claim, right or title, in and to the Swap Contract hereby assigned and conveyed, from time to time to institute and prosecute in the name and at the expense of Borrower, or otherwise, but for the benefit of Administrative Agent and LendersLender, any and all proceedings at law, in equity, or otherwise, that Administrative Agent Lender may deem proper in order to collect, assert or enforce any claim, right or title, of any kind, in and to the Swap Transaction Contract hereby assigned and conveyed, or intended so to be, and to defend and compromise, at the election of Administrative AgentLender, any and all actions, suits or proceedings with respect to the Swap TransactionContract, and generally to do all and any such action in relation thereto as Administrative Agent Lender shall deem advisable; , it being expressly understood and agreed that such Lender right and power of attorney is inoperative and inapplicable until such time as an Event of Default exists or a default exists under the Swap Contract beyond any applicable notice and cure period. Lender shall not incur any liability if any action so taken by Lender or on its behalf shall prove to be inadequate or invalid. Borrower expressly understands and agrees that Lender is not hereby declares that the appointment hereby made and powers hereby granted are coupled with an interest and are and shall be irrevocable by assuming any duties or obligations of Borrower in any manner, (or for any reason. Administrative Agent may exercise its rights under this Section only after the occurrence and during the continuation of a Default Affiliate) to make payments to Swap Counterparty under any Swap Contract or under any other Loan Document. Such payment duties and obligations remain the responsibility of the Loan DocumentsBorrower (or its Affiliate) notwithstanding any language in this Agreement.
Appears in 1 contract
Samples: Loan Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Swap Transactions. (a) Borrower may, but shall not be required to, may enter into an one or more Swap Transaction Transactions and Swap Contracts with a Lender the Swap Counterparty on terms that are acceptable to Swap Counterparty in its sole discretion for the Required Lenders (purpose of hedging and protecting against interest rate fluctuation risks with respect to the Loan. Upon the Maturity Date, or such financial institution is referred to herein as “Swap Bank”). The Lenders agree earlier date that the Swap Bank may be one Loan becomes due by reason of an Event of Default, or otherwise, or upon payment of the Agents or an Affiliate of the Agents. Loan in full, Agent may direct that all such existing Swap Contracts entered into by Borrower agrees that if Borrower executes an Swap Transactionbe broken and discontinued, the provisions of this Section 1.19 shall govern and apply any and all breakage fees, discontinuance fees, settlement obligations, and any and all other sums, fees and costs with respect to such Swap Transaction. Transactions and Swap Contracts shall become due and payable by Borrower acknowledges and agrees that in accordance with the failure of respective Swap Contract, with the Borrower to comply with its obligations under as the sole defaulting party as contemplated by the Swap Transaction and to make payments when due thereunderContract. Unless otherwise specifically agreed in writing by Borrower, will be a default under this Loan and Lenders may advance funds, on Borrower’s behalf to cure Borrower’s default under the Swap Transaction. On the terms and subject to the provisions of this AgreementAgent, Lenders will make advances from interest reserve for periodic payments under the and Swap Transaction as and when they become due. All amounts advanced Counterparty, Borrower's obligations (including any payment obligations) with respect to any such Swap Contracts provided by Lenders to or entered into with Swap Bank, Borrower or others in Counterparty (that is a Lender hereunder) with respect of Borrower’s obligations under the Swap Transaction shall be added to the Loan and shall be deemed a part of the Obligations secured by the Deed of Trust Mortgage and the all other Loan Documents. All amounts payable to Borrower pursuant to the Swap Transaction shall be paid to Administrative Agent collateral for the ratable benefit Loan, and any default by Borrower (after the expiration of Lenders any applicable notice and applied by Lenders to cure period) under any such Swap Contracts shall, at the payment of interest on the Loan or other costs discretion of the PropertyAgent, constitute an Event of Default under this Agreement. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap Transaction, Borrower shall not modify or terminate the Swap Transaction without the prior written consent of Administrative Agent.
(b) As additional security for the obligations of Borrower under the Loan Documents, Borrower hereby transfers, assigns, and conveys to Administrative Agent and grants to Agent a security interest in, for the ratable benefit of Lenders, subject to the terms and conditions contained herein, all of Borrower’s 's present and future rights, titles and interests, but not its obligations, duties or liabilities for any breach, in, under and to the all Swap TransactionContracts entered into by Borrower and all such Swap Transactions, any and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunder, and all proceeds of the foregoing. Administrative At Agent's option, if an Event of Default exists, all net amounts payable to Borrower under the Swap Contract entered into by Borrower shall be paid to Agent for the benefit of Lenders, and shall be applied to pay interest or other amounts under the Loan. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap Contract entered into by Borrower, Borrower shall not modify or terminate such Swap Contract without the prior written consent of Agent. Additionally, subject to the terms of such Swap Contract, if there is an uncured default under any such Swap Contract, if an Event of Default exists, Agent shall have the right at any time (but shall have no obligation) to take in its name or in the name of Borrower such action as Administrative Agent may at any time determine to be necessary or advisable to cure any uncured default under or with respect to the any such Swap Transaction Contract or to protect the rights of Borrower or Swap Bank Counterparty thereunder; provided, however, that prior to before the occurrence of a an Event of Default, Administrative Agent shall give prior written notice to Borrower before taking any such action. Neither Administrative Agent or Lenders shall incur any liability if any action so taken by Administrative Agent or on its behalf shall prove to be inadequate or invalidFor this purpose, and Borrower agrees to hold Administrative Agent and Lenders free and harmless against and from any loss, cost, liability or expense (including, but not limited to, attorneys’ fees and expenses) incurred in connection with any such action, as provided in this Agreement. It is agreed and understood that, in addition to any and all other remedies to which Administrative Agent and Lenders are entitled at law or in equity, Administrative Agent and Lenders shall have all rights and benefits to which a secured party is entitled at law or in equity, including, without limitation under the Uniform Commercial Code as adopted and in effect in the State of Texas and upon any foreclosure by Lenders of the lien under the Deed of Trust, all right, title and interest of Borrower in and to the Swap Transaction and any and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunder, and all proceeds of the foregoing, shall automatically be conveyed in connection therewith, unless prior to such foreclosure, Administrative Agent elects to exclude Borrower’s right, title and interest in the Swap Transaction from such foreclosure.
(c) Borrower hereby constitutes and appoints Administrative Agent as Borrower’s its true and lawful attorney, -in-fact with the full power of substitution, for it which power of attorney is coupled with an interest and irrevocable by Borrower in its name, place and steadany manner, or otherwise, on behalf and for the benefit of Administrative Agentany reason, to exercise, at the election of Administrative AgentAgent and so long as an Event of Default exists, any and all rights and remedies of Borrower under the such Swap TransactionContract, including, without limitation, including making any payments thereunder and consummating any transactions contemplated thereby, and to take any action that Agent may deem proper in order to collect, assert or enforce any claim, right or title, in and to such Swap Contract hereby assigned and conveyed, from time to time to institute and prosecute in the name and at the expense of Borrower, or otherwise, but for the benefit of Administrative Agent and for the benefit of Lenders, any and all proceedings at law, in equity, or otherwise, that Administrative Agent may deem proper in order to collect, assert or enforce any claim, right or title, of any kind, in and to the such Swap Transaction Contract hereby assigned and conveyed, or intended so to be, and to defend and compromise, at the election of Administrative Agent, any and all actions, suits or proceedings with respect to the Swap TransactionContract, and generally to do all and any such action in relation thereto as Administrative Agent shall deem advisable; . Agent shall not incur any liability if any action so taken by Agent or on its behalf shall prove to be inadequate or invalid. Borrower expressly understands and agrees that Agent is not hereby assuming any duties or obligations of Borrower to make payments to Swap Counterparty under any such Swap Contract or under any other Loan Document. Such payment duties and obligations remain the responsibility of Borrower notwithstanding any language in this Agreement. In no event shall any terms and conditions set forth in this Section 7.13 be deemed to diminish or otherwise restrict any rights of a Swap Counterparty under a Swap Contract. Borrower hereby declares represents to Agent and the Lenders that as of the appointment hereby made and powers hereby granted are coupled with an interest and are date hereof, and shall be irrevocable deemed to represent on any and each day that Borrower enters into a Swap Transaction that each Guarantor is an "eligible contract participant" as defined in the Commodity Exchange Act (but Borrower is not making any such representation as to any other day, even if said Swap Transaction continues to exist). In the event the foregoing representation proves to have been incorrect when made or deemed to have been made, Agent and the Lenders hereby reserve all of their respective contractual and other rights and remedies, at law or in equity, including (to the extent permitted by Borrower in any mannerapplicable law) the right to claim, or and pursue a separate cause of action, for any reason. Administrative Agent may exercise its rights under this Section only after the occurrence and during the continuation damages as a result of a Default under any of the Loan Documentssuch misrepresentation.
Appears in 1 contract
Samples: Loan Agreement (KBS Strategic Opportunity REIT II, Inc.)
Swap Transactions. (a) Borrower may, but shall not be required to, enter into an Swap Transaction with a Lender acceptable to the Required Lenders (such financial institution is referred to herein as “"Swap Bank”"). The Lenders agree that the Swap Bank may be one of the Agents or an Affiliate of the Agents. Borrower agrees that if Borrower executes an a Swap Transaction, the provisions of this Section 1.19 shall govern and apply to such Swap Transaction. Borrower acknowledges and agrees that the failure of Borrower to comply with its obligations under the Swap Transaction and to make payments when due thereunder, will be a default under this Loan and Lenders may advance funds, on Borrower’s 's behalf to cure Borrower’s 's default under the Swap Transaction. On the terms and subject to the provisions of this Agreement, Lenders will make advances from interest reserve for periodic payments under the Swap Transaction Contract as and when they become due. All amounts advanced by Lenders to Swap Bank, Borrower or others in respect of Borrower’s 's obligations under the Swap Transaction shall be added to the Loan and shall be deemed a part of the Obligations secured by the Deed of Trust and the other Loan Documents. All amounts payable to Borrower pursuant to the Swap Transaction shall be paid to Administrative Agent for the ratable benefit of Lenders and applied by Lenders to the payment of interest on the Loan or other costs of the Property. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap Transaction, Borrower shall not modify or terminate the Swap Transaction without the prior written consent of Administrative Agent.
(b) As additional security for the obligations of Borrower under the Loan Documents, Borrower hereby transfers, assigns, and conveys to Administrative Agent for the ratable benefit of Lenders, subject to the terms and conditions contained herein, all of Borrower’s 's rights, titles and interests, but not its obligations, duties or liabilities for any breach, in, under and to the Swap Transaction, any and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunder, and all proceeds of the foregoing. Administrative Agent shall have the right at any time (but shall have no obligation) to take in its name or in the name of Borrower such action as Administrative Agent may at any time determine to be necessary or advisable to cure any default under or with respect to the Swap Transaction or to protect the rights of Borrower or Swap Bank thereunder; provided, however, that prior to the occurrence of a Default, Administrative Agent shall give prior written notice to Borrower before taking any such action. Neither Administrative Agent or Lenders shall incur any liability if any action so taken by Administrative Agent or on its behalf shall prove to be inadequate or invalid, and Borrower agrees to hold Administrative Agent and Lenders free and harmless against and from any loss, cost, liability or expense (including, but not limited to, attorneys’ ' fees and expenses) incurred in connection with any such action, as provided in this Agreement. It is agreed and understood that, in addition to any and all other remedies to which Administrative Agent and Lenders are entitled at law or in equity, Administrative Agent and Lenders shall have all rights and benefits to which a secured party is entitled at law or in equity, including, without limitation under the Uniform Commercial Code as adopted and in effect in the State of Texas and upon any foreclosure by Lenders of the lien under the Deed of Trust, all right, title and interest of Borrower in and to the Swap Transaction and any and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunder, and all proceeds of the foregoing, shall automatically be conveyed in connection therewith, unless prior to such foreclosure, Administrative Agent elects to exclude Borrower’s 's right, title and interest in the Swap Transaction from such foreclosure.
(c) Borrower hereby constitutes and appoints Administrative Agent as Borrower’s 's true and lawful attorney, with the full power of substitution, for it and in its name, place and stead, or otherwise, on behalf and for the benefit of Administrative Agent, to exercise, at the election of Administrative Agent, any and all rights and remedies of Borrower under the Swap Transaction, including, without limitation, making any payments thereunder and consummating any transactions contemplated thereby, from time to time to institute and prosecute in the name and at the expense of Borrower, or otherwise, but for the benefit of Administrative Agent and Lenders, any and all proceedings at law, in equity, or otherwise, that Administrative Agent may deem proper in order to collect, assert or enforce any claim, right or title, of any kind, in and to the Swap Transaction hereby assigned and conveyed, or intended so to be, and to defend and compromise, at the election of Administrative Agent, any and all actions, suits or proceedings with respect to the Swap Transaction, and generally to do all and any such action in relation thereto as Administrative Agent shall deem advisable; and Borrower hereby declares that the appointment hereby made and powers hereby granted are coupled with an interest and are and shall be irrevocable by Borrower in any manner, or for any reason. Administrative Agent may exercise its rights under this Section only after the occurrence and during the continuation of a Default under any of the Loan Documents.
Appears in 1 contract
Samples: Construction Loan Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Swap Transactions. (a) Borrower may, but shall not be required to, enter into an Swap Transaction with a Lender acceptable to the Required Lenders (such financial institution is referred to herein as “Swap Bank”). The Lenders agree that the Swap Bank may be one of the Agents or an Affiliate of the Agents. Borrower agrees that if Borrower executes an Swap Transaction, the provisions of this Section 1.19 shall govern and apply to such Swap Transaction. Borrower acknowledges and agrees that the failure of Borrower to comply with its obligations under the Swap Transaction and to make payments when due thereunder, will be a default under this Loan and Lenders may advance funds, on Borrower’s behalf to cure Borrower’s default under the Swap Transaction. On the terms Upon and subject to the provisions terms of this Agreement, Lenders will make advances Borrower and the Bank may from interest reserve time to time enter into such Swap Documents as may be necessary or appropriate to implement Swap Transactions. The aggregate Measured Credit Risk for periodic payments under all Swap Transactions outstanding at any time shall not exceed the Measured Credit Risk Sublimit. The parties acknowledge and agree that (i) all Swap Obligations shall, at such time as the same shall become due and payable pursuant to the Swap Transaction as Documents and when they become due. All amounts advanced without duplication, constitute indebtedness evidenced by Lenders to Swap Bank, Borrower or others in respect of Borrower’s obligations under the Swap Transaction shall be added to the Loan Note and shall be deemed a part of the Obligations secured by the Deed of Trust Mortgages, the Assignments and the other Loan Documents (without regard to whether the amount of the Swap Obligations shall, when added to the outstanding principal balance of all Loans and the Letter of Credit Usages, exceed the Maximum Commitment); without limiting the generality of the foregoing, sums payable by Borrower to the Bank but are not paid as and when the same are first due and payable in accordance with the Swap Documents shall be deemed to be Advances bearing interest at the Prime Rate (or, at the Bank's option following the date on which the same become delinquent as provided by the Swap Documents. All amounts payable , at the Default Interest Rate); (ii) in the event that the terms of this Agreement or any other Loan Document shall be inconsistent with corresponding terms of any Swap Documents solely with respect to Borrower pursuant matters relating exclusively to the Swap Transaction shall be paid to Administrative Agent for the ratable benefit of Lenders and applied by Lenders to the payment of interest on the Loan or other costs of the Property. Borrower acknowledges and agrees thatTransaction, notwithstanding the terms of the Swap TransactionDocuments shall control; (iii) in the event that pursuant to any provision of any Swap Document the Bank shall become obligated for the payment of any money to or for the account of Borrower as a result of any Swap Transaction (a "Bank Swap Obligation"), Borrower such Bank Swap Obligation (x) may be netted against Borrower's Swap Obligations if and to the extent expressly permitted by the Swap Documents; (y) to the extent any Bank Swap Obligation is not so netted against Borrower's Swap Obligation, or if after such netting some portion of the Bank's Swap Obligation shall remain unsatisfied, the remaining Bank Swap Obligation shall constitute an obligation independent of this Agreement, shall be governed solely by the relevant Swap Documents and shall not modify be offset against or terminate reduce, xxxxx, extinguish or otherwise affect in any way Borrower's absolute and unconditional obligation for the payment and performance of all of Borrower's Obligations hereunder and under the other Loan Documents strictly as and when such payment and performance is required hereunder or thereunder; (iv) the Bank's disapproval of any request by Borrower for the extension of the Termination Date in accordance with Section 2, above, or the Bank's exercise of its right to require the termination of this Agreement as of the ensuing Termination Date pursuant to Section 2 shall constitute a "Termination Event" for all purposes relevant to the Swap Transaction without Documents (without, however, constituting an Event of Default by the prior written consent Borrower thereunder); (v) the occurrence of Administrative Agentany Event of Default under this Agreement, the Note or any other Loan Document (excluding the Swap Documents) shall constitute an Event of Default under the Swap Documents; and (vi) the occurrence of any Event of Default under any Swap Document which shall remain uncured beyond the expiration of any period of notice or grace applicable to such Event of Default thereunder shall constitute an Event of Default under this Agreement and each other Loan Document.
(b) As additional security If, and on each occasion that, the amount of Measured Credit Risk shall exceed the Measured Credit Risk Sublimit, the Bank shall so notify Borrower (and Borrower agrees that notice given by facsimile transmission in accordance with Section 13(e) shall be adequate for the obligations purpose of any notice to Borrower under pursuant to this Section). Such notice shall specify the Loan Documentsamount of the Excess Measured Credit Risk then in effect. Within two (2) days after its receipt of each notice from the Bank of Excess Measured Credit Risk, Borrower hereby transfers, assignsshall (i) provide the Bank with Additional Collateral in an amount equal to the amount of the Excess Measured Credit Risk, and conveys to Administrative Agent for the ratable benefit of Lenders, subject to the terms (ii) execute and conditions contained herein, all of Borrower’s rights, titles and interests, but not its obligations, duties or liabilities for any breach, in, under and to the Swap Transaction, deliver any and all amounts received by pledge, assignment, custody, control or similar agreements which the Bank shall reasonably request in order to establish or confirm the Bank's present, perfected, absolute and first-priority interest in and to such Additional Collateral. Borrower acknowledges that notwithstanding the actual amount of Excess Measured Credit Risk, Additional Collateral shall be pledged (or otherwise furnished) to the Bank in connection therewith or to which Borrower is entitled thereunder, the minimum amount of One Hundred Thousand Dollars ($100,000) and in integral multiples thereof. Any and all proceeds Additional Collateral provided to the Bank shall secure all of the foregoing. Administrative Agent shall have the right at any time (but shall have no obligation) to take in its name or in the name of Borrower such action as Administrative Agent may at any time determine to be necessary or advisable to cure any default under or with respect to the Swap Transaction or to protect the rights of Borrower or Swap Bank thereunder; provided, however, that prior to the occurrence of a Default, Administrative Agent shall give prior written notice to Borrower before taking any such action. Neither Administrative Agent or Lenders shall incur any liability if any action so taken by Administrative Agent or on its behalf shall prove to be inadequate or invalid, and Borrower agrees to hold Administrative Agent and Lenders free and harmless against and from any loss, cost, liability or expense Obligations (including, but not limited to, attorneys’ fees and expensesthe Excess Measured Credit Risk which occasioned the provision thereof). At such time as there shall be no Excess Measured Credit Risk for a period of ten (10) incurred in connection with any such action, as provided in this Agreement. It is agreed and understood that, in addition to any and all other remedies to which Administrative Agent and Lenders are entitled at law or in equity, Administrative Agent and Lenders shall have all rights and benefits to which a secured party is entitled at law or in equity, including, without limitation under the Uniform Commercial Code as adopted and in effect in the State of Texas and upon any foreclosure by Lenders of the lien under the Deed of Trust, all right, title and interest of Borrower in and to the Swap Transaction and any and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunderconsecutive Business Days, and all proceeds provided that there shall then be no Default or Event of Default under this Agreement or under any other Loan Document, the foregoing, Bank shall automatically be conveyed in connection therewith, unless prior to such foreclosure, Administrative Agent elects to exclude Borrower’s right, title and interest in the Swap Transaction from such foreclosure.
(c) Borrower hereby constitutes and appoints Administrative Agent as Borrower’s true and lawful attorney, with the full power of substitution, for release any Additional Collateral then held by it and in promptly after its name, place and stead, or otherwise, on behalf and for the benefit of Administrative Agent, to exercise, at the election of Administrative Agent, any and all rights and remedies of Borrower under the Swap Transaction, including, without limitation, making any payments thereunder and consummating any transactions contemplated thereby, from time to time to institute and prosecute in the name and at the expense receipt of Borrower, or otherwise, but 's written request for the benefit of Administrative Agent and Lenders, any and all proceedings at law, in equity, or otherwise, that Administrative Agent may deem proper in order to collect, assert or enforce any claim, right or title, of any kind, in and to the Swap Transaction hereby assigned and conveyed, or intended so to be, and to defend and compromise, at the election of Administrative Agent, any and all actions, suits or proceedings with respect to the Swap Transaction, and generally to do all and any such action in relation thereto as Administrative Agent shall deem advisable; and Borrower hereby declares that the appointment hereby made and powers hereby granted are coupled with an interest and are and shall be irrevocable by Borrower in any manner, or for any reason. Administrative Agent may exercise its rights under this Section only after the occurrence and during the continuation of a Default under any of the Loan Documentsrelease.
Appears in 1 contract
Swap Transactions. (a) Borrower may, but shall not be required to, may enter into an one or more Swap Transaction Transactions and Swap Contracts with a Lender the Swap Counterparty on terms that are acceptable to Swap Counterparty in its sole discretion for the Required Lenders (purpose of hedging and protecting against interest rate fluctuation risks with respect to the Loan. Upon the Maturity Date, or such financial institution is referred to herein as “Swap Bank”). The Lenders agree earlier date that the Swap Bank may be one Loan becomes due by reason of an Event of Default, or otherwise, or upon payment of the Agents or an Affiliate of the Agents. Borrower agrees Loan in full, Agent may direct that if Borrower executes an all existing Swap TransactionContracts be broken and discontinued, the provisions of this Section 1.19 shall govern and apply any and all breakage fees, discontinuance fees, settlement obligations, and any and all other sums, fees and costs with respect to such Swap Transaction. Transactions and Swap Contracts shall become due and payable by Borrower acknowledges and agrees that in accordance with the failure of respective Swap Contract, with the Borrower to comply with its obligations under as the sole defaulting party as contemplated by the Swap Transaction Contract. Unless otherwise specifically agreed in writing by Borrower, Agent and Swap Counterparty, Borrower's obligations (including any payment obligations) with respect to make payments when due thereunder, will be any such Swap Contracts provided by or entered into with Swap Counterparty (that is a default under this Loan and Lenders may advance funds, on Borrower’s behalf to cure Borrower’s default under the Swap Transaction. On the terms and subject to the provisions of this Agreement, Lenders will make advances from interest reserve for periodic payments under the Swap Transaction as and when they become due. All amounts advanced by Lenders to Swap Bank, Borrower or others in Lender hereunder) with respect of Borrower’s obligations under the Swap Transaction shall be added to the Loan and shall be deemed a part of the Obligations secured by the Deed Deeds of Trust and the all other Loan Documents. All amounts payable to Borrower pursuant to the Swap Transaction shall be paid to Administrative Agent collateral for the ratable benefit Loan, and any default by Borrower (after the expiration of Lenders any applicable notice and applied by Lenders to cure period) under any such Swap Contracts shall, at the payment of interest on the Loan or other costs discretion of the PropertyAgent, constitute an Event of Default under this Agreement. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap Transaction, Borrower shall not modify or terminate the Swap Transaction without the prior written consent of Administrative Agent.
(b) As additional security for the obligations of Borrower under the Loan Documents, Borrower hereby transfers, assigns, and conveys to Administrative Agent for the ratable benefit of Lendersand grants to Agent a security interest in, subject to the terms and conditions contained herein, all of Borrower’s 's present and future rights, titles and interests, but not its obligations, duties or liabilities for any breach, in, under and to the all Swap TransactionContracts and all -44- Loan Agreement (KBS REIT III) Swap Transactions, any and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunder, and all proceeds of the foregoing. Administrative At Agent's option, if an Event of Default exists, all net amounts payable to Borrower under the Swap Contract shall be paid to Agent and shall be applied to pay interest or other amounts under the Loan. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap Contract, Borrower shall not modify or terminate the Swap Contract without the prior written consent of Agent. Additionally, subject to the terms of the Swap Contract, if there is an uncured default under any Swap Contract, if an Event of Default exists, Agent shall have the right at any time (but shall have no obligation) to take in its name or in the name of Borrower (or its Affiliate) such action as Administrative Agent may at any time determine to be necessary or advisable to cure any uncured default under or with respect to the any Swap Transaction Contract or to protect the rights of Borrower (or its Affiliate) or Swap Bank Counterparty thereunder; provided, however, that prior to before the occurrence of a an Event of Default, Administrative Agent shall give prior written notice to Borrower before taking any such action. Neither Administrative Agent or Lenders shall incur any liability if any action so taken by Administrative Agent or on its behalf shall prove to be inadequate or invalidFor this purpose, and Borrower agrees to hold Administrative Agent and Lenders free and harmless against and from any loss, cost, liability or expense (including, but not limited to, attorneys’ fees and expenses) incurred in connection with any such action, as provided in this Agreement. It is agreed and understood that, in addition to any and all other remedies to which Administrative Agent and Lenders are entitled at law or in equity, Administrative Agent and Lenders shall have all rights and benefits to which a secured party is entitled at law or in equity, including, without limitation under the Uniform Commercial Code as adopted and in effect in the State of Texas and upon any foreclosure by Lenders of the lien under the Deed of Trust, all right, title and interest of Borrower in and to the Swap Transaction and any and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunder, and all proceeds of the foregoing, shall automatically be conveyed in connection therewith, unless prior to such foreclosure, Administrative Agent elects to exclude Borrower’s right, title and interest in the Swap Transaction from such foreclosure.
(c) Borrower hereby constitutes and appoints Administrative Agent as Borrower’s its true and lawful attorney, -in-fact with the full power of substitution, for it which power of attorney is coupled with an interest and irrevocable by Borrower in its name, place and steadany manner, or otherwise, on behalf and for the benefit of Administrative Agentany reason, to exercise, at the election of Administrative AgentAgent and so long as an Event of Default exists, any and all rights and remedies of Borrower (or its Affiliate) under the Swap TransactionContract, including, without limitation, including making any payments thereunder and consummating any transactions contemplated thereby, and to take any action that Agent may deem proper in order to collect, assert or enforce any claim, right or title, in and to the Swap Contract hereby assigned and conveyed, from time to time to institute and prosecute in the name and at the expense of Borrower, or otherwise, but for the benefit of Administrative Agent and LendersAgent, any and all proceedings at law, in equity, or otherwise, that Administrative Agent may deem proper in order to collect, assert or enforce any claim, right or title, of any kind, in and to the Swap Transaction Contract hereby assigned and conveyed, or intended so to be, and to defend and compromise, at the election of Administrative Agent, any and all actions, suits or proceedings with respect to the Swap TransactionContract, and generally to do all and any such action in relation thereto as Administrative Agent shall deem advisable; . Agent shall not incur any liability if any action so taken by Agent or on its behalf shall prove to be inadequate or invalid. Borrower expressly understands and agrees that Agent is not hereby assuming any duties or obligations of Borrower hereby declares that (or its Affiliate) to make payments to Swap Counterparty under any Swap Contract or under any other Loan Document. Such payment duties and obligations remain the appointment hereby made responsibility of Borrower (or its Affiliate) notwithstanding any language in this Agreement. In no event shall any terms and powers hereby granted are coupled with an interest and are and shall be irrevocable by Borrower conditions set forth in any manner, or for any reason. Administrative Agent may exercise its rights under this Section only after the occurrence and during the continuation 7.13 be deemed to diminish or otherwise restrict any rights of a Default Swap Counterparty under any of the Loan Documentsa Swap Contract.
Appears in 1 contract
Samples: Loan Agreement (KBS Real Estate Investment Trust III, Inc.)
Swap Transactions. (a) Borrower may, but shall not be required to, Borrowers may enter into an one or more Swap Transaction Transactions and Swap Contracts with a Lender the Swap Counterparty on terms that are acceptable to Swap Counterparty in its sole discretion for the Required Lenders (purpose of hedging and protecting against interest rate fluctuation risks with respect to the Loan. Upon the Maturity Date, or such financial institution is referred to herein as “Swap Bank”). The Lenders agree earlier date that the Swap Bank may be one Loan becomes due by reason of an Event of Default, or otherwise, or upon payment of the Agents or an Affiliate of the Agents. Borrower agrees Loan in full, Agent may direct that if Borrower executes an all existing Swap TransactionContracts be broken and discontinued, the provisions of this Section 1.19 shall govern and apply any and all breakage fees, discontinuance fees, settlement obligations, and any and all other sums, fees and costs with respect to such Swap Transaction. Transactions and Swap Contracts shall become due and payable by Borrowers in accordance with the respective Swap Contract, with the Borrower acknowledges and agrees that as the failure of Borrower to comply with its obligations under sole defaulting party as contemplated by the Swap Transaction Contract. Unless otherwise specifically agreed in writing by Borrowers, Agent and Swap Counterparty, Borrowers’ obligations (including any payment obligations) with respect to make payments when due thereunder, will be any such Swap Contracts provided by or entered into with Swap Counterparty (that is a default under this Loan and Lenders may advance funds, on Borrower’s behalf to cure Borrower’s default under the Swap Transaction. On the terms and subject to the provisions of this Agreement, Lenders will make advances from interest reserve for periodic payments under the Swap Transaction as and when they become due. All amounts advanced by Lenders to Swap Bank, Borrower or others in Lender hereunder) with respect of Borrower’s obligations under the Swap Transaction shall be added to the Loan and shall be deemed a part of the Obligations secured by the Deed Deeds of Trust and the all other Loan Documents. All amounts payable to Borrower pursuant to the Swap Transaction shall be paid to Administrative Agent collateral for the ratable benefit Loan, and any default by any Borrower (after the expiration of Lenders any applicable notice and applied by Lenders to cure period) under any such Swap Contracts shall, at the payment of interest on the Loan or other costs discretion of the PropertyAgent, constitute an Event of Default under this Agreement. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap Transaction, Borrower shall not modify or terminate the Swap Transaction without the prior written consent of Administrative Agent.
(b) As additional security for the obligations of Borrower Borrowers under the Loan Documents, Borrower Borrowers hereby transferstransfer, assignsassign, and conveys convey to Administrative Agent for the ratable benefit of Lendersand grant to Agent a security interest in, subject to the terms and conditions contained herein, all of Borrower’s Borrowers’ present and future rights, titles and interests, but not its obligations, duties or liabilities for any breach, in, under and to the all Swap TransactionContracts and all Swap Transactions, any and all amounts received by Borrower in connection therewith or to which Borrower is Borrowers are entitled thereunder, and all proceeds of the foregoing. Administrative At Agent’s option, if an Event of Default exists, all net amounts payable to Borrowers under the Swap Contract shall be paid to Agent and shall be applied to pay interest or other amounts under the Loan. Borrowers acknowledge and agree that, notwithstanding the terms of the Swap Contract, Borrowers shall not modify or terminate the Swap Contract without the prior written consent of Agent. Additionally, subject to the terms of the Swap Contract, if there is an uncured default under any Swap Contract, if an Event of Default exists, Agent shall have the right at any time (but shall have no obligation) to take in its name or in the name of any Borrower (or their Affiliates) such action as Administrative Agent may at any time determine to be necessary or advisable to cure any uncured default under or with respect to the any Swap Transaction Contract or to protect the rights of any Borrower (or their Affiliates) or Swap Bank Counterparty thereunder; provided, however, that prior to before the occurrence of a an Event of Default, Administrative Agent shall give prior written notice to Borrower Borrowers before taking any such action. Neither Administrative For this purpose, Borrowers hereby constitute Agent or Lenders shall incur any liability if any action so taken by Administrative Agent or on its behalf shall prove to be inadequate or invalid, and Borrower agrees to hold Administrative Agent and Lenders free and harmless against and from any loss, cost, liability or expense (including, but not limited to, attorneys’ fees and expenses) incurred in connection with any such action, as provided in this Agreement. It is agreed and understood that, in addition to any and all other remedies to which Administrative Agent and Lenders are entitled at law or in equity, Administrative Agent and Lenders shall have all rights and benefits to which a secured party is entitled at law or in equity, including, without limitation under the Uniform Commercial Code as adopted and in effect in the State of Texas and upon any foreclosure by Lenders of the lien under the Deed of Trust, all right, title and interest of Borrower in and to the Swap Transaction and any and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunder, and all proceeds of the foregoing, shall automatically be conveyed in connection therewith, unless prior to such foreclosure, Administrative Agent elects to exclude Borrower’s right, title and interest in the Swap Transaction from such foreclosure.
(c) Borrower hereby constitutes and appoints Administrative Agent as Borrower’s their true and lawful attorney, -in-fact with the full power of substitution, for it which power of attorney is coupled with an interest and irrevocable by Borrowers in its name, place and steadany manner, or otherwise, on behalf and for the benefit of Administrative Agentany reason, to exercise, at the election of Administrative AgentAgent and so long as an Event of Default exists, any and all rights and remedies of Borrower Borrowers (or their Affiliates) under the Swap TransactionContract, including, without limitation, including making any payments thereunder and consummating any transactions contemplated thereby, and to take any action that Agent may deem proper in order to collect, assert or enforce any claim, right or title, in and to the Swap Contract hereby assigned and conveyed, from time to time to institute and prosecute in the name and at the expense of BorrowerBorrowers, or otherwise, but for the benefit of Administrative Agent and LendersAgent, any and all proceedings at law, in equity, or otherwise, that Administrative Agent may deem proper in order to collect, assert or enforce any claim, right or title, of any kind, in and to the Swap Transaction Contract hereby assigned and conveyed, or intended so to be, and to defend and compromise, at the election of Administrative Agent, any and all actions, suits or proceedings with respect to the Swap TransactionContract, and generally to do all and any such action in relation thereto as Administrative Agent shall deem advisable; . Agent shall not incur any liability if any action so taken by Agent or on its behalf shall prove to be inadequate or invalid. Borrowers expressly understand and Borrower agree that Agent is not hereby declares that assuming any duties or obligations of Borrowers (or their Affiliates) to make payments to Swap Counterparty under any Swap Contract or under any other Loan Document. Such payment duties and obligations remain the appointment hereby made responsibility of Borrowers (or their Affiliates) notwithstanding any language in this Agreement. In no event shall any terms and powers hereby granted are coupled with an interest and are and shall be irrevocable by Borrower conditions set forth in any manner, or for any reason. Administrative Agent may exercise its rights under this Section only after the occurrence and during the continuation 7.13 be deemed to diminish or otherwise restrict any rights of a Default Swap Counterparty under any of the Loan Documentsa Swap Contract.
Appears in 1 contract
Samples: Loan Agreement (KBS Real Estate Investment Trust III, Inc.)
Swap Transactions. (a) Borrower mayOn the Closing Date, the Paying Agent, not in its individual capacity but shall not be required tosolely in its capacity as Paying Agent on behalf of the Trust, enter into an Swap Transaction with a Lender acceptable is hereby directed by the Trust to the Required Lenders (such financial institution is referred to herein as “Swap Bank”). The Lenders agree that execute and deliver the Swap Bank may be one of the Agents or an Affiliate of the Agents. Borrower agrees that if Borrower executes an Swap Transaction, the provisions of this Section 1.19 shall govern and apply to such Swap Transaction. Borrower acknowledges and agrees that the failure of Borrower to comply with its obligations Transactions under the Swap Transaction Agreement in the name of the Trust. Each of the representations, undertakings and agreements in the Swap Transactions shall be made on the part of the Trust and in no event shall be personal representations, undertakings or agreements by the Paying Agent. Subject to make payments when due thereunderSection 6.12, will be a default under this Loan and Lenders may advance funds, on Borrower’s behalf to cure Borrower’s default the Paying Agent shall enforce the rights of the Trust specified in the Swap Transactions under the Swap Transaction. On Agreement, including the terms Credit Support Annex (as defined in the Swap Agreement) and subject the Schedule to the provisions of this related ISDA Master Agreement, Lenders will make advances from interest reserve for periodic payments under the Swap Transaction as and when they become due. All amounts advanced by Lenders to Swap Bank, Borrower or others in respect of Borrower’s obligations under the Swap Transaction shall be added to the Loan and shall be deemed a part of the Obligations secured by the Deed of Trust and the other Loan Documents. All amounts payable to Borrower pursuant to the Swap Transaction shall be paid to Administrative Agent for the ratable benefit of Lenders and applied by Lenders to the payment of interest on the Loan or other costs of the Property. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap Transaction, Borrower shall not modify or terminate the Swap Transaction without the prior written consent of Administrative Agent.
(b) As additional security for No later than by noon (New York City time) on the obligations of Borrower under second Business Day prior to each Distribution Date, based on the Loan Documents, Borrower hereby transfers, assignsCMSA Reports provided by the Capmark Master Servicer or on information that the Paying Agent obtains from the Swap Counterparty pursuant to each Swap Transaction, and conveys to Administrative Agent for the ratable benefit of Lenders, subject to the terms and conditions contained hereinpriorities set forth in Article VI hereof, all of Borrower’s rights, titles and interests, but not its obligations, duties or liabilities for any breach, in, under and the Paying Agent shall provide to the Swap Counterparty sufficient information to enable the Swap Counterparty to calculate each Net Swap Payment, if any, due to the Swap Counterparty under the related Swap Transaction, any based upon the projected payment that will be payable on the related Class of Floating Rate Regular Interests pursuant to the priorities set forth in Article VI hereof and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunder, and all proceeds the Pass-Through Rate of the foregoingrelated Class of Floating Rate Regular Interests and the related Class of Floating Rate Certificates and the amount of any Prepayment Premiums payable on each such Floating Rate Regular Interest. Administrative By the close of business on the second Business Day prior to each Distribution Date, the Paying Agent shall have the right at any time provide written notice (but shall have no obligationwhich notice may be delivered electronically) to take in its name or in the name Capmark Master Servicer of Borrower such action as Administrative Agent may at any time determine each Net Swap Payment, if any, required to be necessary distributed to the Swap Counterparty pursuant to the terms of the related Swap Transaction and will provide such notice even if no amounts are due to the Swap Counterparty. The Capmark Master Servicer shall be deemed to have distributed the Net Swap Payments specified by the Paying Agent in accordance with Section 5.3(c) and this Section 8.31(b) as part of the Available Distribution Amount and the Paying Agent shall be deemed to have transferred each such Net Swap Payment to the related Master Servicer's Floating Rate Account. Accordingly, the Capmark Master Servicer shall withhold an amount equal to the Net Swap Payments from payments made to the Paying Agent pursuant to Section 5.2(a)(xi) and shall pay such amount to the Swap Counterparty in accordance with this Agreement and the Swap Transactions.
(c) [Reserved].
(d) Promptly upon receipt of any payment or advisable other receipt in respect of the Floating Rate Regular Interests or the Swap Transactions, the Paying Agent shall deposit the same into the related Floating Rate Account. If the Swap Counterparty is required to cure make a Net Swap Payment to the Trust under any default under or Swap Transaction with respect to any Distribution Date and such Net Swap Payment is not received by the Paying Agent by 4:00 pm New York City time on the Business Day before such Distribution Date, then the Paying Agent shall notify the applicable Swap Counterparty to such effect not later than 5:00 p.m. (New York City time) on the Business Day before such Distribution Date.
(e) [Reserved].
(f) If the Swap Counterparty is required to post collateral pursuant to a Swap Transaction, the Paying Agent shall establish an account, which shall be an Eligible Account (a "Swap Counterparty Collateral Account"). The Paying Agent shall deposit all collateral received from the Swap Counterparty under the Credit Support Annex (as defined in the Swap Agreement) of the related Swap Transaction into such Swap Counterparty Collateral Account. The only permitted withdrawal from or application of funds on deposit in, or otherwise to protect the rights credit of, the Swap Counterparty Collateral Account shall be (i) for application to obligations of Borrower the Swap Counterparty under the related Swap Transaction if such Swap Transaction becomes subject to early termination or upon default by the Swap Bank thereunderCounterparty or (ii) to return collateral to the Swap Counterparty when and as required by the related Swap Transaction. The Paying Agent agrees to give the Swap Counterparty prompt notice if it obtains knowledge that such Swap Counterparty Collateral Account or any funds on deposit therein or otherwise to the credit of the Swap Counterparty Collateral Account, shall become subject to any writ, order, judgment, warrant of attachment, execution or similar process. Funds credited to the Swap Counterparty Collateral Account shall be applied as contemplated in the related Swap Transaction. Subject to the terms of the related Swap Transaction, proceeds of liquidation of any Swap Transaction collateral (if the related Swap Transaction becomes subject to early termination or upon default by the Swap Counterparty) shall be deposited in the related Floating Rate Account for application as applicable.
(g) The Paying Agent will have no obligation on behalf of the Trust to pay to the Swap Counterparty any portion of an applicable Fixed Interest Distribution unless and until the interest payment on the related Floating Rate Regular Interest is actually received by the Paying Agent; provided, however, that prior the Paying Agent shall receive funds from the Swap Counterparty representing the net amount payable to the occurrence Trust pursuant to each Swap Transaction and shall remit such amount to the holders of the related Floating Rate Certificates as part of the related Floating Rate Interest Distribution Amount pursuant to Section 6.12. The Capmark Master Servicer shall, at the direction of the Paying Agent, pay to the Swap Counterparty the portion of interest and other amounts payable on the related Floating Rate Regular Interest which is equal to the net swap payment due to the Swap Counterparty pursuant to the related Swap Transaction (a Default, Administrative Agent shall give prior written notice to Borrower before taking any such action. Neither Administrative Agent or Lenders shall incur any liability if any action so taken by Administrative Agent or on its behalf shall prove to be inadequate or invalid, and Borrower agrees to hold Administrative Agent and Lenders free and harmless against and from any loss, cost, liability or expense "Net Swap Payment").
(including, but not limited to, attorneys’ fees and expensesh) incurred in In connection with any such actionamendment to a Swap Transaction, as provided in this Agreement. It is agreed and understood the Paying Agent agrees that, subject to Section 6.12 and Section 15.3(g), it will follow written direction timely delivered to it from the Depositor in addition to any and all other remedies to which Administrative Agent and Lenders are entitled at law or in equity, Administrative Agent and Lenders shall have all rights and benefits to which a secured party is entitled at law or in equity, including, without limitation under the Uniform Commercial Code as adopted and in effect in the State of Texas and upon any foreclosure by Lenders respect of the lien under terms of, or its execution on behalf of the Deed of TrustTrust of, all right, title and interest of Borrower in and any such amendments to the such Swap Transaction and any and all amounts received by Borrower in connection therewith or agrees to which Borrower is entitled thereunder, and all proceeds of the foregoing, shall automatically be conveyed in connection therewith, unless prior to such foreclosure, Administrative Agent elects to exclude Borrower’s right, title and interest in the Swap Transaction obtain a Rating Agency Confirmation from such foreclosureeach Rating Agency.
(c) Borrower hereby constitutes and appoints Administrative Agent as Borrower’s true and lawful attorney, with the full power of substitution, for it and in its name, place and stead, or otherwise, on behalf and for the benefit of Administrative Agent, to exercise, at the election of Administrative Agent, any and all rights and remedies of Borrower under the Swap Transaction, including, without limitation, making any payments thereunder and consummating any transactions contemplated thereby, from time to time to institute and prosecute in the name and at the expense of Borrower, or otherwise, but for the benefit of Administrative Agent and Lenders, any and all proceedings at law, in equity, or otherwise, that Administrative Agent may deem proper in order to collect, assert or enforce any claim, right or title, of any kind, in and to the Swap Transaction hereby assigned and conveyed, or intended so to be, and to defend and compromise, at the election of Administrative Agent, any and all actions, suits or proceedings with respect to the Swap Transaction, and generally to do all and any such action in relation thereto as Administrative Agent shall deem advisable; and Borrower hereby declares that the appointment hereby made and powers hereby granted are coupled with an interest and are and shall be irrevocable by Borrower in any manner, or for any reason. Administrative Agent may exercise its rights under this Section only after the occurrence and during the continuation of a Default under any of the Loan Documents.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Trust 2007-Iq16)
Swap Transactions. (a) Borrower may, but shall not be required to, may enter into an one or more Swap Transaction Transactions and Swap Contracts with a Lender the Swap Counterparty on terms that are acceptable to Swap Counterparty in its sole discretion for the Required Lenders (purpose of hedging and protecting against interest rate fluctuation risks with respect to the Loan. Upon the respective Maturity Date, or such financial institution is referred to herein as “Swap Bank”). The Lenders agree earlier date that the a Loan becomes due by reason of an event of default, or otherwise, Agent may direct that all existing Swap Bank may Contracts be one of the Agents or an Affiliate of the Agents. Borrower agrees that if Borrower executes an Swap Transactionbroken and discontinued, the provisions of this Section 1.19 shall govern and apply any and all breakage fees, discontinuance fees and any other similar fees and costs with respect to such Swap TransactionContracts shall become immediately due and payable by Borrower. Borrower acknowledges Unless otherwise specifically agreed in writing by Borrower, Agent and agrees that the failure of Borrower Swap Counterparty, Borrower's obligations (including any payment obligations) with respect to comply any such Swap Contracts provided by or entered into with its obligations under the Swap Transaction and to make payments when due thereunder, will be a default under this Loan and Lenders may advance funds, on Borrower’s behalf to cure Borrower’s default under the Swap Transaction. On the terms and subject to the provisions of this Agreement, Lenders will make advances from interest reserve for periodic payments under the Swap Transaction as and when they become due. All amounts advanced by Lenders to Swap Bank, Borrower or others in Counterparty with respect of Borrower’s obligations under the Swap Transaction shall be added to the Loan and shall be deemed a part of the Obligations secured by the Deed of Trust and the all other Loan Documents. All amounts payable to Borrower pursuant to the Swap Transaction shall be paid to Administrative Agent collateral for the ratable benefit Loan, and any default by Borrower (after the expiration of Lenders any applicable notice and applied by Lenders to cure period) under any such Swap Contracts shall, at the payment of interest on the Loan or other costs discretion of the PropertyAgent, constitute an Event of Default under this Agreement. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap Transaction, Borrower shall not modify or terminate the Swap Transaction without the prior written consent of Administrative Agent.
(b) As additional security for the obligations of Borrower under the Loan Documents, Borrower hereby transfers, assigns, and conveys to Administrative Agent for the ratable benefit of Lendersand grants to Agent a security interest in, subject to the terms and conditions contained herein, all of Borrower’s 's rights, titles and interests, but not its obligations, duties or liabilities for any breach, in, under and to the Swap Contract and each Swap Transaction, any and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunder, and all proceeds of the foregoing. Administrative At Agent's option, all amounts payable to Borrower under the Swap Contract shall be paid to Agent and shall be applied to pay interest or other amounts under the Loan. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap Contract, Borrower shall not modify or terminate the Swap Contract without the prior written consent of Agent. Additionally, Agent shall have the right at any time (but shall have no obligation) to take in its name or in the name of Borrower (or its Affiliate) such action as Administrative Agent may at any time reasonable determine to be necessary or advisable to cure any default under or with respect to the any Swap Transaction Contract or to protect the rights of Borrower (or its Affiliate) or Swap Bank Counterparty thereunder; provided, however, that prior to before the occurrence of a an Event of Default, Administrative Agent shall give prior written notice to Borrower before taking any such action. Neither Administrative Agent or Lenders shall incur any liability if any action so taken by Administrative Agent or on its behalf shall prove to be inadequate or invalidFor this purpose, and Borrower agrees to hold Administrative Agent and Lenders free and harmless against and from any loss, cost, liability or expense (including, but not limited to, attorneys’ fees and expenses) incurred in connection with any such action, as provided in this Agreement. It is agreed and understood that, in addition to any and all other remedies to which Administrative Agent and Lenders are entitled at law or in equity, Administrative Agent and Lenders shall have all rights and benefits to which a secured party is entitled at law or in equity, including, without limitation under the Uniform Commercial Code as adopted and in effect in the State of Texas and upon any foreclosure by Lenders of the lien under the Deed of Trust, all right, title and interest of Borrower in and to the Swap Transaction and any and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunder, and all proceeds of the foregoing, shall automatically be conveyed in connection therewith, unless prior to such foreclosure, Administrative Agent elects to exclude Borrower’s right, title and interest in the Swap Transaction from such foreclosure.
(c) Borrower hereby constitutes and appoints Administrative Agent as Borrower’s its true and lawful attorney, -in-fact with the full power of substitution, for it which power of attorney is coupled with an interest and irrevocable by Borrower in its name, place and steadany manner, or otherwise, on behalf and for the benefit of Administrative Agentany reason, to exercise, at the election of Administrative Agent, any and all rights and remedies of Borrower (or its Affiliate) under the Swap TransactionContract, including, without limitation, including making any payments thereunder and consummating any transactions contemplated thereby, and to take any action that Agent may deem proper in order to collect, assert or enforce any claim, right or title, in and to the Swap Contract hereby assigned and conveyed, from time to time to institute and prosecute in the name and at the expense of Borrower, or otherwise, but for the benefit of Administrative Agent and LendersAgent, any and all proceedings at law, in equity, or otherwise, that Administrative Agent may deem proper in order to collect, assert or enforce any claim, right or title, of any kind, in and to the Swap Transaction Contract hereby assigned and conveyed, or intended so to be, and to defend and compromise, at the election of Administrative Agent, any and all actions, suits or proceedings with respect to the Swap TransactionContract, and generally to do all and any such action in relation thereto as Administrative Agent shall deem advisable; . Agent shall not incur any liability if any action so taken by Agent or on its behalf shall prove to be inadequate or invalid. Borrower expressly understands and agrees that Agent is not hereby assuming any duties or obligations of Borrower hereby declares that the appointment hereby made and powers hereby granted are coupled with an interest and are and shall be irrevocable by Borrower in any manner, (or for any reason. Administrative Agent may exercise its rights under this Section only after the occurrence and during the continuation of a Default Affiliate) to make payments to Swap Counterparty under any Swap Contract or under any other Loan Document. Such payment duties and obligations remain the responsibility of the Loan DocumentsBorrower (or its Affiliate) notwithstanding any language in this Agreement.
Appears in 1 contract
Swap Transactions. (a) Borrower may, but shall not be required to, may enter into an one or more Swap Transaction Transactions and Swap Contracts with a Lender the Swap Counterparty on terms that are acceptable to Swap Counterparty in its sole discretion for the Required Lenders (purpose of hedging and protecting against interest rate fluctuation risks with respect to the Loan. Upon the Maturity Date, or such financial institution is referred to herein as “Swap Bank”). The Lenders agree earlier date that the Swap Bank may be one Loan becomes due by reason of an Event of Default, or otherwise, or upon payment of the Agents or an Affiliate of the Agents. Borrower agrees Loan in full, Agent may direct that if Borrower executes an all existing Swap TransactionContracts be broken and discontinued, the provisions of this Section 1.19 shall govern and apply any and all breakage fees, discontinuance fees, settlement obligations, and any and all other sums, fees and costs with respect to such Swap Transaction. Transactions and Swap Contracts shall become due and payable by Borrower acknowledges and agrees that in accordance with the failure of respective Swap Contract, with the Borrower to comply with its obligations under as the sole defaulting party as contemplated by the Swap Transaction Contract. Unless otherwise specifically agreed in writing by Borrower, Agent and Swap Counterparty, Borrower's obligations (including any payment obligations) with respect to make payments when due thereunder, will be any such Swap Contracts provided by or entered into with Swap Counterparty (that is a default under this Loan and Lenders may advance funds, on Borrower’s behalf to cure Borrower’s default under the Swap Transaction. On the terms and subject to the provisions of this Agreement, Lenders will make advances from interest reserve for periodic payments under the Swap Transaction as and when they become due. All amounts advanced by Lenders to Swap Bank, Borrower or others in Lender hereunder) with respect of Borrower’s obligations under the Swap Transaction shall be added to the Loan and shall be deemed a part of the Obligations secured by the Deed Deeds of Trust and the all other Loan Documents. All amounts payable to Borrower pursuant to the Swap Transaction shall be paid to Administrative Agent collateral for the ratable benefit Loan, and any default by Borrower (after the expiration of Lenders any applicable notice and applied by Lenders to cure period) under any such Swap Contracts shall, at the payment of interest on the Loan or other costs discretion of the PropertyAgent, constitute an Event of Default under this Agreement. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap Transaction, Borrower shall not modify or terminate the Swap Transaction without the prior written consent of Administrative Agent.
(b) As additional security for the obligations of Borrower under the Loan Documents, Borrower hereby transfers, assigns, and conveys to Administrative Agent for the ratable benefit of Lendersand grants to Agent a security interest in, subject to the terms and conditions contained herein, all of Borrower’s 's present and future rights, titles and interests, but not its obligations, duties or liabilities for any breach, in, under and to the all Swap TransactionContracts and all Swap Transactions, any and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunder, and all proceeds of the foregoing. Administrative At Agent's option, if an Event of Default exists, all net amounts payable to Borrower under the Swap Contract shall be paid to Agent and shall be applied to pay interest or other amounts under the Loan. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap Contract, Borrower shall not modify or terminate the Swap Contract without the prior written consent of Agent. Additionally, subject to the terms of the Swap Contract, if there is an uncured default under any Swap Contract, if an Event of Default exists, Agent shall have the right at any time (but shall have no obligation) to take in its name or in the name of Borrower (or its Affiliate) such action as Administrative Agent may at any time determine to be necessary or advisable to cure any uncured default under or with respect to the any Swap Transaction Contract or to protect the rights of Borrower (or its Affiliate) or Swap Bank Counterparty thereunder; provided, however, that prior to before the occurrence of a an Event of Default, Administrative Agent shall give prior written notice to Borrower before taking any such action. Neither Administrative Agent or Lenders shall incur any liability if any action so taken by Administrative Agent or on its behalf shall prove to be inadequate or invalidFor this purpose, and Borrower agrees to hold Administrative Agent and Lenders free and harmless against and from any loss, cost, liability or expense (including, but not limited to, attorneys’ fees and expenses) incurred in connection with any such action, as provided in this Agreement. It is agreed and understood that, in addition to any and all other remedies to which Administrative Agent and Lenders are entitled at law or in equity, Administrative Agent and Lenders shall have all rights and benefits to which a secured party is entitled at law or in equity, including, without limitation under the Uniform Commercial Code as adopted and in effect in the State of Texas and upon any foreclosure by Lenders of the lien under the Deed of Trust, all right, title and interest of Borrower in and to the Swap Transaction and any and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunder, and all proceeds of the foregoing, shall automatically be conveyed in connection therewith, unless prior to such foreclosure, Administrative Agent elects to exclude Borrower’s right, title and interest in the Swap Transaction from such foreclosure.
(c) Borrower hereby constitutes and appoints Administrative Agent as Borrower’s its true and lawful attorney, -in-fact with the full power of substitution, for it which power of attorney is coupled with an interest and irrevocable by Borrower in its name, place and steadany manner, or otherwise, on behalf and for the benefit of Administrative Agentany reason, to exercise, at the election of Administrative AgentAgent and so long as an Event of Default exists, any and all rights and remedies of Borrower (or its Affiliate) under the Swap TransactionContract, including, without limitation, including making any payments thereunder and consummating any transactions contemplated thereby, and to take any action that Agent may deem proper in order to collect, assert or enforce any claim, right or title, in and to the Swap Contract hereby assigned and conveyed, from time to time to institute and prosecute in the name and at the expense of Borrower, or otherwise, but for the benefit of Administrative Agent and LendersAgent, any and all proceedings at law, in equity, or otherwise, that Administrative Agent may deem proper in order to collect, assert or enforce any claim, right or title, of any kind, in and to the Swap Transaction Contract hereby assigned and conveyed, or intended so to be, and to defend and compromise, at the election of Administrative Agent, any and all actions, suits or proceedings with respect to the Swap TransactionContract, and generally to do all and any such action in relation thereto as Administrative Agent shall deem advisable; . Agent shall not incur any liability if any action so taken by Agent or on its behalf shall prove to be inadequate or invalid. Borrower expressly understands and agrees that Agent is not hereby assuming any duties or obligations of Borrower hereby declares that (or its Affiliate) to make payments to Swap Counterparty under any Swap Contract or under any other Loan Document. Such payment duties and obligations remain the appointment hereby made responsibility of Borrower (or its Affiliate) notwithstanding any language in this Agreement. In no event shall any terms and powers hereby granted are coupled with an interest and are and shall be irrevocable by Borrower conditions set forth in any manner, or for any reason. Administrative Agent may exercise its rights under this Section only after the occurrence and during the continuation 7.13 be deemed to diminish or otherwise restrict any rights of a Default Swap Counterparty under any of the Loan Documentsa Swap Contract.
Appears in 1 contract
Samples: Loan Agreement (KBS Real Estate Investment Trust II, Inc.)
Swap Transactions. (a) Borrower may, but shall not be required to, Borrowers may enter into an one or more Swap Transaction Transactions and Swap Contracts with a Lender the Swap Counterparty on terms that are acceptable to Swap Counterparty in its sole discretion for the Required Lenders (purpose of hedging and protecting against interest rate fluctuation risks with respect to the Loan. Upon the Maturity Date, or such financial institution is referred to herein as “Swap Bank”). The Lenders agree earlier date that the Swap Bank may be one Loan becomes due by reason of an Event of Default, or otherwise, or upon payment of the Agents or an Affiliate of the Agents. Borrower agrees Loan in full, Agent may direct that if Borrower executes an all existing Swap TransactionContracts be broken and discontinued, the provisions of this Section 1.19 shall govern and apply any and all breakage fees, discontinuance fees, settlement obligations, and any and all other sums, fees and costs with respect to such Swap Transaction. Borrower acknowledges Transactions and agrees that Swap Contracts shall become due and payable by Borrowers in accordance with the failure of Borrower to comply respective Swap Contract, with its obligations under the Borrowers as the sole defaulting party as contemplated by the Swap Transaction Contract. Unless otherwise specifically agreed in writing by Borrowers, Agent and Swap Counterparty, Borrowers' obligations (including any payment obligations) with respect to make payments when due thereunder, will be any such Swap Contracts provided by or entered into with Swap Counterparty (that is a default under this Loan and Lenders may advance funds, on Borrower’s behalf to cure Borrower’s default under the Swap Transaction. On the terms and subject to the provisions of this Agreement, Lenders will make advances from interest reserve for periodic payments under the Swap Transaction as and when they become due. All amounts advanced by Lenders to Swap Bank, Borrower or others in Lender hereunder) with respect of Borrower’s obligations under the Swap Transaction shall be added to the Loan and shall be deemed a part of the Obligations secured by the Deed Deeds of Trust and the all other Loan Documents. All amounts payable to Borrower pursuant to the Swap Transaction shall be paid to Administrative Agent collateral for the ratable benefit Loan, and any default by any Borrower (after the expiration of Lenders any applicable notice and applied by Lenders to cure period) under any such Swap Contracts shall, at the payment of interest on the Loan or other costs discretion of the PropertyAgent, constitute an Event of Default under this Agreement. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap Transaction, Borrower shall not modify or terminate the Swap Transaction without the prior written consent of Administrative Agent.
(b) As additional security for the obligations of Borrower Borrowers under the Loan Documents, Borrower Borrowers hereby transferstransfer, assignsassign, and conveys convey to Administrative Agent for the ratable benefit of Lendersand grants to Agent a security interest in, subject to the terms and conditions contained herein, all of Borrower’s Borrowers' present and future rights, titles and interests, but not its obligations, duties or liabilities for any breach, in, under and to the all Swap TransactionContracts and all Swap Transactions, any and all amounts received by Borrower Borrowers in connection therewith or to which Borrower is Borrowers are entitled thereunder, and all proceeds of the foregoing. Administrative At Agent's option, if an Event of Default exists, all net amounts payable to Borrowers under the Swap Contract shall be paid to Agent and shall be applied to pay interest or other amounts under the Loan. Borrowers acknowledge and agree that, notwithstanding the terms of the Swap Contract, Borrowers shall not modify or terminate the Swap Contract without the prior written consent of Agent. Additionally, subject to the terms of the Swap Contract, if there is an uncured default under any Swap Contract, if an Event of Default exists, Agent shall have the right at any time (but shall have no obligation) to take in its name or in the name of any Borrower (or its Affiliate) such action as Administrative Agent may at any time determine to be necessary or advisable to cure any uncured default under or with respect to the any Swap Transaction Contract or to protect the rights of any Borrower (or its Affiliate) or Swap Bank Counterparty thereunder; provided, however, that prior to before the occurrence of a an Event of Default, Administrative Agent shall give prior written notice to Borrower before taking any such action. Neither Administrative For this purpose, Borrowers hereby constitute Agent or Lenders shall incur any liability if any action so taken by Administrative Agent or on its behalf shall prove to be inadequate or invalid, and Borrower agrees to hold Administrative Agent and Lenders free and harmless against and from any loss, cost, liability or expense (including, but not limited to, attorneys’ fees and expenses) incurred in connection with any such action, as provided in this Agreement. It is agreed and understood that, in addition to any and all other remedies to which Administrative Agent and Lenders are entitled at law or in equity, Administrative Agent and Lenders shall have all rights and benefits to which a secured party is entitled at law or in equity, including, without limitation under the Uniform Commercial Code as adopted and in effect in the State of Texas and upon any foreclosure by Lenders of the lien under the Deed of Trust, all right, title and interest of Borrower in and to the Swap Transaction and any and all amounts received by Borrower in connection therewith or to which Borrower is entitled thereunder, and all proceeds of the foregoing, shall automatically be conveyed in connection therewith, unless prior to such foreclosure, Administrative Agent elects to exclude Borrower’s right, title and interest in the Swap Transaction from such foreclosure.
(c) Borrower hereby constitutes and appoints Administrative Agent as Borrower’s their true and lawful attorney, -in-fact with the full power of substitution, for it which power of attorney is coupled with an interest and irrevocable by Borrowers in its name, place and steadany manner, or otherwise, on behalf and for the benefit of Administrative Agentany reason, to exercise, at the election of Administrative AgentAgent and so long as an Event of Default exists, any and all rights and remedies of Borrower Borrowers (or their Affiliate) under the Swap TransactionContract, including, without limitation, including making any payments thereunder and consummating any transactions contemplated thereby, and to take any action that Agent may deem proper in order to collect, assert or enforce any claim, right or title, in and to the Swap Contract hereby assigned and conveyed, from time to time to institute and prosecute in the name and at the expense of BorrowerBorrowers, or otherwise, but for the benefit of Administrative Agent and LendersAgent, any and all proceedings at law, in equity, or otherwise, that Administrative Agent may deem proper in order to collect, assert or enforce any claim, right or title, of any kind, in and to the Swap Transaction Contract hereby assigned and conveyed, or intended so to be, and to defend and compromise, at the election of Administrative Agent, any and all actions, suits or proceedings with respect to the Swap TransactionContract, and generally to do all and any such action in relation thereto as Administrative Agent shall deem advisable; . Agent shall not incur any liability if any action so taken by Agent or on its behalf shall prove to be inadequate or invalid. Borrowers expressly understand and agree that Agent is not hereby assuming any duties or obligations of any Borrower hereby declares that (or its Affiliate) to make payments to Swap Counterparty under any Swap Contract or under any other Loan Document. Such payment duties and obligations remain the appointment hereby made responsibility of Borrowers (or their Affiliate) notwithstanding any language in this Agreement. In no event shall any terms and powers hereby granted are coupled with an interest and are and shall be irrevocable by Borrower conditions set forth in any manner, or for any reason. Administrative Agent may exercise its rights under this Section only after the occurrence and during the continuation 7.13 be deemed to diminish or otherwise restrict any rights of a Default Swap Counterparty under any of the Loan Documentsa Swap Contract.
Appears in 1 contract
Samples: Loan Agreement (KBS Real Estate Investment Trust, Inc.)