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.
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, 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 TransactionTransactions and Swap Contracts shall become due and payable by Borrowers in accordance with the respective Swap Contract, with the Borrower as the sole defaulting party as contemplated by the Swap Contract. Unless otherwise specifically agreed in writing by Borrowers, Agent and Swap Counterparty, Borrowers’ obligations (including any payment obligations) with respect to any such Swap Contracts provided by or entered into with Swap Counterparty (that is a Lender hereunder) with respect to the Loan shall be secured by the Deeds of Trust and all other collateral for the Loan, and any default by any Borrower acknowledges (after the expiration of any applicable notice and agrees that cure period) under any such Swap Contracts shall, at the failure discretion of the Agent, constitute an Event of Default under this Agreement. As additional security for the obligations of Borrowers under the Loan Documents, Borrowers hereby transfer, assign, and convey to Agent and grant to Agent a security interest in, subject to the terms and conditions contained herein, all of Borrowers’ present and future rights, titles and interests, but not its obligations, duties or liabilities for any breach, in, under and to all Swap Contracts and all Swap Transactions, any and all amounts received by Borrower in connection therewith or to comply with its obligations which Borrowers are entitled thereunder, and all proceeds of the foregoing. At Agent’s option, if an Event of Default exists, all net amounts payable to Borrowers 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 Contract shall be paid to Administrative Agent for the ratable benefit of Lenders and shall be applied by Lenders to the payment of pay interest on the Loan or other costs of amounts under the PropertyLoan. Borrower acknowledges Borrowers acknowledge and agrees agree that, notwithstanding the terms of the Swap TransactionContract, Borrower Borrowers shall not modify or terminate the Swap Transaction Contract without the prior written consent of Administrative 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 Agent may at any time determine to be necessary or advisable to cure any uncured default under any Swap Contract or to protect the rights of any Borrower (or their Affiliates) or Swap Counterparty thereunder; provided, however, that before the occurrence of an Event of Default, Agent shall give prior written notice to Borrowers before taking any such action. For this purpose, Borrowers hereby constitute Agent their true and lawful attorney-in-fact with full power of substitution, which power of attorney is coupled with an interest and irrevocable by Borrowers in any manner, or for any reason, to exercise, at the election of Agent and so long as an Event of Default exists, any and all rights and remedies of Borrowers (or their Affiliates) under the Swap Contract, 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 Borrowers, or otherwise, but for the benefit of Agent, any and all proceedings at law, in equity, or otherwise, that Agent may deem proper in order to collect, assert or enforce any claim, right or title, of any kind, in and to the Swap Contract hereby assigned and conveyed, or intended so to be, and to defend and compromise, at the election of Agent, any and all actions, suits or proceedings with respect to the Swap Contract, and generally to do all and any such action in relation thereto as 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 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 responsibility of Borrowers (or their Affiliates) 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.
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 TransactionTransactions and Swap Contracts shall become due and payable by Borrowers in accordance with the respective Swap Contract, with the Borrowers as the sole defaulting party as contemplated by the Swap Contract. Unless otherwise specifically agreed in writing by Borrowers, Agent and Swap Counterparty, Borrowers' obligations (including any payment obligations) with respect to any such Swap Contracts provided by or entered into with Swap Counterparty (that is a Lender hereunder) with respect to the Loan shall be secured by the Deeds of Trust and all other collateral for the Loan, and any default by any Borrower acknowledges (after the expiration of any applicable notice and agrees that cure period) under any such Swap Contracts shall, at the failure discretion of Borrower the Agent, constitute an Event of Default under this Agreement. As additional security for the obligations of Borrowers under the Loan Documents, Borrowers hereby transfer, assign, and convey to comply with Agent and grants to Agent a security interest in, subject to the terms and conditions contained herein, all of Borrowers' present and future rights, titles and interests, but not its obligations obligations, duties or liabilities for any breach, in, under and to all Swap Contracts and all Swap Transactions, any and all amounts received by Borrowers in connection therewith or to which Borrowers are entitled thereunder, and all proceeds of the foregoing. At Agent's option, if an Event of Default exists, all net amounts payable to Borrowers 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 Contract shall be paid to Administrative Agent for the ratable benefit of Lenders and shall be applied by Lenders to the payment of pay interest on the Loan or other costs of amounts under the PropertyLoan. Borrower acknowledges Borrowers acknowledge and agrees agree that, notwithstanding the terms of the Swap TransactionContract, Borrower Borrowers shall not modify or terminate the Swap Transaction Contract without the prior written consent of Administrative 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 Agent may at any time determine to be necessary or advisable to cure any uncured default under any Swap Contract or to protect the rights of any Borrower (or its Affiliate) or Swap Counterparty thereunder; provided, however, that before the occurrence of an Event of Default, Agent shall give prior written notice to Borrower before taking any such action. For this purpose, Borrowers hereby constitute Agent their true and lawful attorney-in-fact with full power of substitution, which power of attorney is coupled with an interest and irrevocable by Borrowers in any manner, or for any reason, to exercise, at the election of Agent and so long as an Event of Default exists, any and all rights and remedies of Borrowers (or their Affiliate) under the Swap Contract, 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 Borrowers, or otherwise, but for the benefit of Agent, any and all proceedings at law, in equity, or otherwise, that Agent may deem proper in order to collect, assert or enforce any claim, right or title, of any kind, in and to the Swap Contract hereby assigned and conveyed, or intended so to be, and to defend and compromise, at the election of Agent, any and all actions, suits or proceedings with respect to the Swap Contract, and generally to do all and any such action in relation thereto as 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 (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 responsibility of Borrowers (or their Affiliate) 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.
Appears in 1 contract
Samples: Loan Agreement (KBS Real Estate Investment Trust, 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 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 all other collateral for the other Loan, and any default by Borrower (after the expiration of any applicable notice and cure period) under any such Swap Contracts shall, at the discretion of the Agent, constitute an Event of Default under this Agreement. As additional security for the obligations of Borrower under the Loan Documents, Borrower hereby transfers, assigns, and conveys to Agent and grants to Agent a security interest in, 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 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. All At Agent's option, all amounts payable to Borrower pursuant to under the Swap Transaction Contract shall be paid to Administrative Agent for the ratable benefit of Lenders and shall be applied by Lenders to the payment of pay interest on the Loan or other costs of amounts under the PropertyLoan. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap TransactionContract, Borrower shall not modify or terminate the Swap Transaction Contract without the prior written consent of Administrative 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 Agent may at any time reasonable determine to be necessary or advisable to cure any default under any Swap Contract or to protect the rights of Borrower (or its Affiliate) or Swap Counterparty thereunder; provided, however, that before the occurrence of an Event of Default, Agent shall give prior written notice to Borrower before taking any such action. For this purpose, Borrower hereby constitutes Agent its true and lawful attorney-in-fact with full power of substitution, which power of attorney is coupled with an interest and irrevocable by Borrower in any manner, or for any reason, to exercise, at the election of Agent, any and all rights and remedies of Borrower (or its Affiliate) under the Swap Contract, 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 Agent, any and all proceedings at law, in equity, or otherwise, that Agent may deem proper in order to collect, assert or enforce any claim, right or title, of any kind, in and to the Swap Contract hereby assigned and conveyed, or intended so to be, and to defend and compromise, at the election of Agent, any and all actions, suits or proceedings with respect to the Swap Contract, and generally to do all and any such action in relation thereto as 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 (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 responsibility of Borrower (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 TransactionTransactions and Swap Contracts shall become due and payable by Borrower in accordance with the respective Swap Contract, with the Borrower as the sole defaulting party as contemplated by the Swap Contract. Unless otherwise specifically agreed in writing by Borrower, Agent and Swap Counterparty, Borrower's obligations (including any payment obligations) with respect to any such Swap Contracts provided by or entered into with Swap Counterparty (that is a Lender hereunder) with respect to the Loan shall be secured by the Deeds of Trust and all other collateral for the Loan, and any default by Borrower acknowledges (after the expiration of any applicable notice and agrees that cure period) under any such Swap Contracts shall, at the failure discretion of the Agent, constitute an Event of Default under this Agreement. As additional security for the obligations of Borrower to comply with its obligations under the Swap Transaction Loan Documents, Borrower hereby transfers, assigns, and conveys to make payments when due thereunderAgent and grants to Agent a security interest in, will be a default under this Loan and Lenders may advance funds, on Borrower’s behalf subject to cure Borrower’s default under the Swap Transaction. On the terms and subject to the provisions of this Agreementconditions contained herein, 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 all of Borrower’s obligations 's present and future rights, titles and interests, but not its obligations, duties or liabilities for any breach, in, under the and to all Swap Transaction shall be added Contracts and all -44- Loan Agreement (KBS REIT III) Swap Transactions, any and all amounts received by Borrower in connection therewith or to the Loan which Borrower is entitled thereunder, and shall be deemed a part all proceeds of the Obligations secured by the Deed foregoing. At Agent's option, if an Event of Trust and the other Loan Documents. All Default exists, all net amounts payable to Borrower pursuant to under the Swap Transaction Contract shall be paid to Administrative Agent for the ratable benefit of Lenders and shall be applied by Lenders to the payment of pay interest on the Loan or other costs of amounts under the PropertyLoan. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap TransactionContract, Borrower shall not modify or terminate the Swap Transaction Contract without the prior written consent of Administrative 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 Agent may at any time determine to be necessary or advisable to cure any uncured default under any Swap Contract or to protect the rights of Borrower (or its Affiliate) or Swap Counterparty thereunder; provided, however, that before the occurrence of an Event of Default, Agent shall give prior written notice to Borrower before taking any such action. For this purpose, Borrower hereby constitutes Agent its true and lawful attorney-in-fact with full power of substitution, which power of attorney is coupled with an interest and irrevocable by Borrower in any manner, or for any reason, to exercise, at the election of Agent and so long as an Event of Default exists, any and all rights and remedies of Borrower (or its Affiliate) under the Swap Contract, 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 Agent, any and all proceedings at law, in equity, or otherwise, that Agent may deem proper in order to collect, assert or enforce any claim, right or title, of any kind, in and to the Swap Contract hereby assigned and conveyed, or intended so to be, and to defend and compromise, at the election of Agent, any and all actions, suits or proceedings with respect to the Swap Contract, and generally to do all and any such action in relation thereto as 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 (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 responsibility of Borrower (or its Affiliate) 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.
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, 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 TransactionTransactions and Swap Contracts shall become due and payable by Borrower in accordance with the respective Swap Contract, with the Borrower as the sole defaulting party as contemplated by the Swap Contract. Unless otherwise specifically agreed in writing by Borrower, Agent, Lenders and Swap Counterparty, Borrower's obligations (including any payment obligations) with respect to any such Swap Contracts provided by or entered into with Swap Counterparty (that is a Lender hereunder) with respect to the Loan shall be secured by the Mortgage and all other collateral for the Loan, and any default by Borrower acknowledges (after the expiration of any applicable notice and agrees that cure period) under any such Swap Contracts shall, at the failure discretion of the Agent, constitute an Event of Default under this Agreement. As additional security for the obligations of Borrower to comply with its obligations under the Swap Transaction Loan Documents, Borrower hereby transfers, assigns, and conveys to make payments when due thereunderAgent and grants to Agent a security interest in, will be a default under this Loan and Lenders may advance fundsfor the benefit of Lenders, on Borrower’s behalf subject to cure Borrower’s default under the Swap Transaction. On the terms and subject to the provisions of this Agreementconditions contained herein, 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 all of Borrower’s obligations 's present and future rights, titles and interests, but not its obligations, duties or liabilities for any breach, in, under the and to all Swap Transaction shall be added Contracts entered into by Borrower and all such Swap Transactions, any and all amounts received by Borrower in connection therewith or to the Loan which Borrower is entitled thereunder, and shall be deemed a part all proceeds of the Obligations secured by the Deed foregoing. At Agent's option, if an Event of Trust and the other Loan Documents. All Default exists, all net amounts payable to Borrower pursuant to under the Swap Transaction Contract entered into by Borrower shall be paid to Administrative Agent for the ratable benefit of Lenders Lenders, and shall be applied by Lenders to the payment of pay interest on the Loan or other costs of amounts under the PropertyLoan. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap TransactionContract entered into by Borrower, Borrower shall not modify or terminate the such Swap Transaction Contract without the prior written consent of Administrative 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 Agent may at any time determine to be necessary or advisable to cure any uncured default under any such Swap Contract or to protect the rights of Borrower or Swap Counterparty thereunder; provided, however, that before the occurrence of an Event of Default, Agent shall give prior written notice to Borrower before taking any such action. For this purpose, Borrower hereby constitutes Agent its true and lawful attorney-in-fact with full power of substitution, which power of attorney is coupled with an interest and irrevocable by Borrower in any manner, or for any reason, to exercise, at the election of Agent and so long as an Event of Default exists, any and all rights and remedies of Borrower under such Swap Contract, 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 Agent for the benefit of Lenders, any and all proceedings at law, in equity, or otherwise, that Agent may deem proper in order to collect, assert or enforce any claim, right or title, of any kind, in and to such Swap Contract hereby assigned and conveyed, or intended so to be, and to defend and compromise, at the election of Agent, any and all actions, suits or proceedings with respect to the Swap Contract, and generally to do all and any such action in relation thereto as 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 represents to Agent and the Lenders that as of the date hereof, and shall be 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 applicable law) the right to claim, and pursue a separate cause of action, for damages as a result of such 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, 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 all other collateral for the other Loan, and any default by Borrower (after the expiration of any applicable notice and cure period) under any such Swap Contracts shall, at the discretion of the Lender, constitute an Event of Default under this Agreement. As additional security for the obligations of Borrower under the Loan Documents, Borrower hereby transfers, assigns, and conveys to Lender 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 all Swap Contracts 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. All At Lender’s option, all net amounts payable to Borrower pursuant to under the Swap Transaction Contract shall be paid to Administrative Agent for the ratable benefit of Lenders Lender and shall be applied by Lenders to the payment of pay interest on the Loan or other costs of amounts under the PropertyLoan. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap TransactionContract, Borrower shall not modify or terminate the Swap Transaction Contract without the prior written consent of Administrative AgentLender. 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 Lender may at any time determine to be necessary or advisable to cure any default under any Swap Contract or to protect the rights of Borrower (or its Affiliate) or Swap Counterparty thereunder; provided, however, that before the occurrence of or after the cure of an Event of Default under this Agreement, Lender shall give prior written notice to Borrower before taking any such action. Solely for this purpose, Borrower hereby constitutes Lender its true and lawful attorney-in-fact with full power of substitution, which power of attorney is coupled with an interest and irrevocable by Borrower in any manner, or for any reason, to exercise, at the election of Lender, any and all rights and remedies of Borrower (or its Affiliate) under the Swap Contract, 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 Lender, any and all proceedings at law, in equity, or otherwise, that Lender may deem proper in order to collect, assert or enforce any claim, right or title, of any kind, in and to the Swap Contract hereby assigned and conveyed, or intended so to be, and to defend and compromise, at the election of Lender, any and all actions, suits or proceedings with respect to the Swap Contract, and generally to do all and any such action in relation thereto as 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 assuming any duties or obligations of Borrower (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 responsibility of Borrower (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. 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 TransactionTransactions and Swap Contracts shall become due and payable by Borrower in accordance with the respective Swap Contract, with the Borrower as the sole defaulting party as contemplated by the Swap Contract. Unless otherwise specifically agreed in writing by Borrower, Agent and Swap Counterparty, Borrower's obligations (including any payment obligations) with respect to any such Swap Contracts provided by or entered into with Swap Counterparty (that is a Lender hereunder) with respect to the Loan shall be secured by the Deeds of Trust and all other collateral for the Loan, and any default by Borrower acknowledges (after the expiration of any applicable notice and agrees that cure period) under any such Swap Contracts shall, at the failure discretion of the Agent, constitute an Event of Default under this Agreement. As additional security for the obligations of Borrower to comply with its obligations under the Swap Transaction Loan Documents, Borrower hereby transfers, assigns, and conveys to make payments when due thereunderAgent and grants to Agent a security interest in, will be a default under this Loan and Lenders may advance funds, on Borrower’s behalf subject to cure Borrower’s default under the Swap Transaction. On the terms and subject to the provisions of this Agreementconditions contained herein, 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 all of Borrower’s obligations 's present and future rights, titles and interests, but not its obligations, duties or liabilities for any breach, in, under the and to all Swap Transaction shall be added Contracts and all Swap Transactions, any and all amounts received by Borrower in connection therewith or to the Loan which Borrower is entitled thereunder, and shall be deemed a part all proceeds of the Obligations secured by the Deed foregoing. At Agent's option, if an Event of Trust and the other Loan Documents. All Default exists, all net amounts payable to Borrower pursuant to under the Swap Transaction Contract shall be paid to Administrative Agent for the ratable benefit of Lenders and shall be applied by Lenders to the payment of pay interest on the Loan or other costs of amounts under the PropertyLoan. Borrower acknowledges and agrees that, notwithstanding the terms of the Swap TransactionContract, Borrower shall not modify or terminate the Swap Transaction Contract without the prior written consent of Administrative 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 Agent may at any time determine to be necessary or advisable to cure any uncured default under any Swap Contract or to protect the rights of Borrower (or its Affiliate) or Swap Counterparty thereunder; provided, however, that before the occurrence of an Event of Default, Agent shall give prior written notice to Borrower before taking any such action. For this purpose, Borrower hereby constitutes Agent its true and lawful attorney-in-fact with full power of substitution, which power of attorney is coupled with an interest and irrevocable by Borrower in any manner, or for any reason, to exercise, at the election of Agent and so long as an Event of Default exists, any and all rights and remedies of Borrower (or its Affiliate) under the Swap Contract, 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 Agent, any and all proceedings at law, in equity, or otherwise, that Agent may deem proper in order to collect, assert or enforce any claim, right or title, of any kind, in and to the Swap Contract hereby assigned and conveyed, or intended so to be, and to defend and compromise, at the election of Agent, any and all actions, suits or proceedings with respect to the Swap Contract, and generally to do all and any such action in relation thereto as 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 (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 responsibility of Borrower (or its Affiliate) 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.
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, 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.
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.
Appears in 1 contract
