Common use of Swap Transaction Clause in Contracts

Swap Transaction. (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 Bank of America, N. A. or an Affiliate of Bank of America, N.A. 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. 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 Project. 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.

Swap Transaction. (a) Any Borrower may, but shall not be required to, enter into an a 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 Bank of America, N. A. Administrative Agent or an Affiliate of Bank of America, N.A. Borrower agrees Administrative Agent. Borrowers agree that if any Borrower executes an a Swap Transaction, the provisions of this Section 1.19 shall govern and apply to such Swap Transaction. Borrower acknowledges Borrowers acknowledge and agrees agree that the failure of any 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. 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 Project. 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 AgentLoan. (b) As additional security for the obligations of Borrower Borrowers under the Loan Documents, each 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 such 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 such Borrower in connection therewith or to which such 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 such 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 such Borrower or Swap Bank thereunder; provided, however, that prior to the occurrence of a Default, Administrative Agent shall give prior written notice to such 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 each 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 Borrowers in and to the Swap Transaction and any and all amounts received by Borrower Borrowers in connection therewith or to which any 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 Borrowers’ right, title and interest in the Swap Transaction from such foreclosure. (c) Each Borrower hereby constitutes and appoints Administrative Agent as such 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 such 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 such 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 each 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 Borrowers 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.