Refunding. (i) Swingline Loans shall be refunded by Lenders in accordance with the settlement procedures set forth in Section 3.6(b). (ii) The applicable Borrowers shall pay to the Swingline Lender on demand the amount of such Swingline Loans to the extent amounts received from Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. In addition, the applicable Borrowers hereby authorize the Administrative Agent to charge any account maintained by such applicable Borrowers with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of the applicable Swingline Loans to the extent amounts received from Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the applicable Borrowers from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in accordance with their respective Pro Rata Share (unless the amounts so recovered by or on behalf of such applicable Borrowers pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Swingline Lender has received notice in the manner required pursuant to Section 13.4 and which such Event of Default has not been waived by the Required Lenders or the Lenders, as applicable). (iii) Each Lender acknowledges and agrees that its obligation to refund Swingline Loans in accordance with the terms of this Section 2.2 and Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.2 and Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Revolving Loan would have been made, purchase an undivided participating interest in any Swingline Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such Swingline Loan. Each Lender will immediately transfer to the Swingline Lender, in immediately available funds, the amount of its participation and upon receipt thereof the Swingline Lender will deliver to such Lender a certificate evidencing such participation dated the date of receipt of such funds and for such amount. Whenever, at any time after the Swingline Lender has received from any Lender such Lender’s participating interest in a Swingline Loan, the Swingline Lender receives any payment on account thereof, the Swingline Lender will distribute to such Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded).
Appears in 2 contracts
Samples: Loan and Security Agreement (ADS Tactical, Inc.), Loan and Security Agreement (ADS Tactical, Inc.)
Refunding. (i) The Swingline Lender may by written notice given to the Administrative Agent not later than 11:00 a.m. on any Business Day require the Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall be refunded by specify the aggregate amount of Swingline Loans in which the Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in accordance with the settlement procedures set forth in Section 3.6(b).
(ii) The applicable Borrowers shall such notice such Lender’s Pro Rata Share of such Swingline Loan or Swingline Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender on demand the amount Lender, such Lender’s Pro Rata Share of such Swingline Loans to Loan or Swingline Loans. Amounts funded by the extent amounts received from Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. In addition, the applicable Borrowers hereby authorize the Administrative Agent to charge any account maintained by such applicable Borrowers with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of the applicable Swingline Loans to the extent amounts received from Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the applicable Borrowers from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in accordance with their respective Pro Rata Share (unless the amounts so recovered by or on behalf of such applicable Borrowers pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Swingline Lender has received notice in the manner required pursuant to this Section 13.4 and which such Event of Default has not been waived 2.2(b) shall bear interest payable by the Required Lenders or Borrowers at the Lenders, as applicable).
(iii) rate then applicable to Base Rate Loans. Each Lender acknowledges and agrees that its obligation to refund acquire participations in Swingline Loans in accordance with the terms of pursuant to this Section 2.2 and Section 3.6 paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction including the occurrence and continuance of a Default or Event of Default or reduction or termination of the conditions set forth Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in Article 5. Furtherthe same manner as provided in Section 2.4(b) and Section 3.4 with respect to Revolving Loans made by such Lender (and Section 2.4(b) and Section 3.4 shall apply, each Lender agrees and acknowledges that if prior mutatis mutandis, to the refunding payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Administrative Borrower of any outstanding Swingline Loans pursuant to this Section 2.2 and Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Revolving Loan would have been made, purchase an undivided participating interest participations in any Swingline Loan acquired pursuant to be refunded this paragraph, and thereafter payments in an amount equal to its Pro Rata Share of the aggregate amount respect of such Swingline LoanLoan shall be made to the Administrative Agent and not to the Swingline Lender. Each Any amounts received by the Swingline Lender will immediately transfer from the relevant Borrower (or other party on behalf of the relevant Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, in immediately available funds, the amount of its participation and upon receipt thereof as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender will deliver or to the Administrative Agent, as the case may be, if and to the extent such Lender a certificate evidencing such participation dated the date payment is required to be refunded to any Borrower for any reason. The purchase of receipt of such funds and for such amount. Whenever, at any time after the Swingline Lender has received from any Lender such Lender’s participating interest participations in a Swingline Loan, Loan pursuant to this paragraph shall not relieve the Swingline Lender receives Borrowers of any payment on account thereof, the Swingline Lender will distribute to such Lender its participating interest in such amount (appropriately adjusted, default in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded)payment thereof.
Appears in 2 contracts
Samples: Loan and Security Agreement (Mohawk Industries Inc), Loan and Security Agreement (Mohawk Industries Inc)
Refunding. (i) The Swingline Lender, at any time and from time to time in its sole and absolute discretion may, on behalf of the Borrowers (which hereby irrevocably direct the Swingline Lender to act on their behalf), by written notice given no later than 11:00 a.m. on any Business Day request each Revolving A Lender to make, and each Revolving A Lender hereby agrees to make, a Revolving A Loan as a Base Rate Loan in an amount equal to such Revolving A Lender’s Revolving A Commitment Percentage of the aggregate amount of the Swingline Loans outstanding on the date of such notice, to repay the Swingline Lender. Each Revolving A Lender shall make the amount of such Revolving A Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such notice. The proceeds of such Revolving A Loans shall be refunded immediately made available by Lenders in accordance with the settlement procedures set forth in Section 3.6(b)Administrative Agent to the Swingline Lender for application by the Swingline Lender to the repayment of the Swingline Loans. No Revolving A Lender’s obligation to fund its respective Revolving A Commitment Percentage of a Swingline Loan shall be affected by any other Revolving A Lender’s failure to fund its Revolving A Commitment Percentage of a Swingline Loan, nor shall any Revolving A Lender’s Revolving A Commitment Percentage be increased as a result of any such failure of any other Revolving A Lender to fund its Revolving A Commitment Percentage of a Swingline Loan.
(ii) The applicable Borrowers shall pay to the Swingline Lender on demand in immediately available funds the amount of such Swingline Loans to the extent amounts received from the Revolving A Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. In addition, the applicable Borrowers hereby irrevocably authorize the Administrative Agent to charge any account maintained by such applicable the Borrowers with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of the applicable such Swingline Loans to the extent amounts received from the Revolving A Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the applicable Borrowers from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all the Revolving A Lenders in accordance with their respective Pro Rata Share (unless the amounts so recovered by or on behalf of such applicable Borrowers pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Swingline Lender has received notice in the manner required pursuant to Section 13.4 and which such Event of Default has not been waived by the Required Lenders or the Lenders, as applicable)Revolving A Commitment Percentages.
(iii) Each Lender acknowledges and agrees that its obligation to refund If for any reason any Swingline Loans in accordance with the terms of this Section 2.2 and Section 3.6 is absolute and unconditional and shall Loan cannot be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Furtherrefinanced with a Revolving A Loan pursuant to Section 2.02(b)(i), each Revolving A Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.2 and Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender willshall, on the date the applicable such Revolving A Loan would was to have been mademade pursuant to the notice referred to in Section 2.02(b)(i), purchase for cash an undivided participating interest in any the then outstanding Swingline Loan Loans by paying to be refunded in the Swingline Lender an amount (the “Swingline Participation Amount”) equal to its Pro Rata Share such Revolving A Lender’s Revolving A Commitment Percentage of the aggregate principal amount of such Swingline LoanLoans then outstanding. Each Revolving A Lender will immediately transfer to the Swingline Lender, in immediately available funds, the amount of its participation and upon receipt thereof the Swingline Lender will deliver to such Lender a certificate evidencing such participation dated the date of receipt of such funds and for such amountParticipation Amount. Whenever, at any time after the Swingline Lender has received from any Revolving A Lender such Revolving A Lender’s participating interest in a Swingline LoanParticipation Amount, the Swingline Lender receives any payment on account thereofof the Swingline Loans, the Swingline Lender will distribute to such Revolving A Lender its participating interest in such amount Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and fundedfunded and, in the case of principal and interest payments, to reflect such Revolving A Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swingline Loans then due); provided that in the event that such payment received by the Swingline Lender is required to be returned, such Revolving A Lender will not return to the Swingline Lender any portion thereof previously distributed to it by the Swingline Lender.
(iv) Each Revolving A Lender’s obligation to make the Revolving A Loans referred to in Section 2.02(b)(i) and to purchase participating interests pursuant to Section 2.02(b)(ii) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Revolving A Lender or the Borrowers may have against the Swingline Lender, the Borrowers or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Article VI, (iii) any adverse change in the condition (financial or otherwise) of any Borrower, (iv) any breach of this Agreement or any other Loan Document by any Borrower, any other Loan Party or any other Revolving Credit Lender or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(v) If any Revolving A Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Revolving A Lender pursuant to the foregoing provisions of this Section 2.04(b) by the time specified in Section 2.04(b)(i), the Swingline Lender shall be entitled to recover from such Revolving A Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the applicable Federal Funds Rate, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Revolving A Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving A Lender’s Revolving A Loan or Swingline Participation Amount, as the case may be. A certificate of the Swingline Lender submitted to any Revolving A Lender (through the Administrative Agent) with respect to any amount owing under this clause (v) shall be conclusive absent manifest error.
Appears in 1 contract
Samples: Loan Agreement (Omega Protein Corp)
Refunding. If, for any reason a Swingline Loan is not repaid on the Swingline Maturity Date, the Administrative Agent may, on or after the immediately following Business Day, effect refunding of the unpaid amount of such Swingline Loan as follows:
(i) Swingline Loans Without any request therefor from the Borrower, the Administrative Agent may make a Revolving Credit Loan to the Borrower on behalf of the Revolving Credit Lenders, the proceeds of which shall be refunded by applied to repay all or a portion of the unpaid amount of such Swingline Loan. Upon making such Revolving Credit Loan, the Administrative Agent will send notice thereof to the Borrower and the Revolving Credit Lenders, whereupon the Revolving Credit Lenders in accordance with (including the settlement procedures set forth in Section 3.6(b)Swingline Lender to the extent that it is also a Revolving Credit Lender) shall fund their respective pro rata shares of such Revolving Credit Loan without offset, deduction or counterclaim.
(ii) The applicable Borrowers shall pay Notwithstanding any other provisions of this Agreement to the Swingline Lender on demand the amount of such Swingline Loans contrary, to the extent amounts received from Lenders are that all or any portion of such Revolving Credit Loan may not sufficient be (A) made by the Administrative Agent because any of the conditions precedent to repay in full the outstanding Swingline Loans requested making of a Revolving Credit Loan pursuant to Section 6.2 could not be fulfilled as of the date such Revolving Credit Loan would otherwise have been made or required to be refunded. In addition, the applicable Borrowers hereby authorize (B) legally made by the Administrative Agent to charge the Borrower for any account maintained other reason (including the bankruptcy or insolvency of the Borrower), each Revolving Credit Lender severally, unconditionally and irrevocably agrees that it shall, without regard to the occurrence of any Default or Event of Default, purchase a participating interest in such Swingline Loans in an amount equal to such Revolving Credit Lender’s pro rata share of such Swingline Loan. Each such Revolving Credit Lender will immediately transfer to the Administrative Agent, in immediately available funds, the amount of its participation, and the proceeds of such participation shall be distributed by the Administrative Agent to the Swingline Lender, to such applicable Borrowers with extent as will reduce the amount of the participating interest retained by the Swingline Lender (up in its Swingline Loans. In the event any Revolving Credit Lender fails to the amount make available therein) in order to immediately pay the Swingline Lender the amount of the applicable Swingline Loans to the extent amounts received from Lenders are not sufficient to repay such Revolving Credit Lender’s participation as provided in full the outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount paid to this Section 2.2(b)(ii), the Swingline Lender shall be recovered by or entitled to recover such amount on behalf of demand from such Revolving Credit Lender together with interest at a rate per annum equal to the applicable Borrowers Federal Funds Rate in effect from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in accordance with their respective Pro Rata Share (unless the amounts so recovered by or on behalf of time to time during such applicable Borrowers pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Swingline Lender has received notice in the manner required pursuant to Section 13.4 and which such Event of Default has not been waived by the Required Lenders or the Lenders, as applicable)period.
(iii) Each Revolving Credit Lender acknowledges and agrees that its obligation to refund Swingline Loans in accordance with the terms of this Section 2.2 and Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5VI. Further, each Revolving Credit Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.2 and Section 3.6Section, one of the events described in Section 11.1(f), (g10.1(h) or (hi) shall have occurred, each Revolving Credit Lender will, on the date the applicable Revolving Credit Loan would have been made, purchase an undivided participating interest in any the Swingline Loan to be refunded in an amount equal to its Pro Rata Share Revolving Credit Commitment Percentage of the aggregate amount of such Swingline Loan. Each Revolving Credit Lender will immediately transfer to the Swingline Lender, in immediately available funds, the amount of its participation and upon receipt thereof the Swingline Lender will deliver to such Revolving Credit Lender a certificate evidencing such participation dated the date of receipt of such funds and for such amount. Whenever, at any time after the Swingline Lender has received from any Revolving Credit Lender such Revolving Credit Lender’s participating interest in a Swingline Loan, the Swingline Lender receives any payment on account thereof, the Swingline Lender will distribute to such Revolving Credit Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Credit Lender’s participating interest was outstanding and funded).
Appears in 1 contract
Refunding. So long as no Material Default or Event of Default shall be in existence and Zenith of Texas simultaneously requests a refunding or refinancing under the Mexican Participation Agreement, and subject to satisfaction of the terms and conditions set forth in this Article XI and in Section 2.12 of the Indenture, the Lessee shall have the right to request the Owner Participant to effect, and the Owner Participant, the Owner Trustee and the Indenture Trustee agree, at the sole cost and expense of the Lessee whether or not such refunding is consummated, to cooperate to effect, an optional prepayment of all, but not less than all, of the Notes pursuant to Section 2.12 of the Indenture as part of a refunding or refinancing, on the terms set forth in this Article XI and such Section 2.12 (such refunding or refinancing, a "Refunding"); provided, that the Lessee shall have the right to so request a Refunding and a "Refunding" under and as defined in the Mexican Participation Agreement only twice in the aggregate; provided further, that a substantially simultaneous Refunding hereunder with a "Refunding" under the Mexican Participation Agreement shall be deemed as one refunding request for purposes of such limit and; provided further, that the Owner Participant shall in any event have the right to consent to any such Refunding, which consent the Owner Participant may withhold in the Owner Participant's sole good faith discretion; except that the Owner Participant shall not have such consent right if and to the extent Hunton & Xxxxxxxx, or such other counsel selected by the Owner Participant and reasonably acceptable to the Lessee, delivers an opinion to the Owner Participant (which opinion the Owner Participant agrees to timely request at the time of such Refunding) that, as a result of a change in or clarification of Regulations under Section 467 of the Code (which change or clarification occurs after the Equipment Closing Date and before such Refunding), the absence of such consent right shall not adversely affect the eligibility of the Lease for initial and continued compliance with Section 1.467-3(c)(2)(i) of the Regulations. In connection with a Refunding:
(a) there shall be no material change in the Operative Documents (except to the extent provided in clause (c) and for the inclusion, if any, of additional covenants upon the Lessee which are acceptable to, or required by, the Lessee and the Owner Participant), and specifically, there shall be no change in the Operative Documents adverse to the Owner Participant or the Owner Trustee, in either of such Person's reasonable judgment, including the provisions of the Indenture providing the Owner Trustee with rights in the event of an Indenture Default or an Indenture Event of Default;
(b) the Lessee, the Owner Participant, the Owner Trustee, the Indenture Trustee, and any other appropriate parties will enter into an agreement, in form and substance satisfactory to such Persons, providing for (i) Swingline Loans the issuance and sale by the Owner Trustee on the date specified in such agreement (for the purposes of this Article XI, the "Refunding Date") of debt securities in an aggregate principal amount (in the lawful currency of the U.S.) equal to the aggregate outstanding principal amount of all of the Notes on the Refunding Date, after taking into account any scheduled amortization of principal, if any, occurring on such Refunding Date (the "Replacement Notes"), (ii) payments by the Lessee as Supplemental Rent to the Person or Persons entitled thereto of all other amounts, in respect of accrued interest, and Make Whole Premium Amount, if any, payable on such Refunding Date and all other amounts due and owing to the Lenders under the Operative Documents, and (iii) such other provisions as are reasonably acceptable to or required by the Owner Participant, the Owner Trustee, the Indenture Trustee, the Lessee and the Guarantor;
(c) the Lessee and the Owner Trustee will amend the Lease to provide that Rent payable in respect of the period from and after the Refunding Date shall be refunded by Lenders recalculated to preserve the Net Economic Return which the Owner Participant would have realized had such refunding or refinancing not occurred; provided, that the net present value of Rent shall be minimized to the extent consistent therewith, and amounts payable in respect of Casualty Value, Termination Value, and the EBO Price from and after the Refunding Date shall be appropriately recalculated to preserve the Net Economic Return which the Owner Participant would have realized had such refunding or refinancing not occurred (it being agreed that any recalculations pursuant to this clause (c) shall be performed in accordance with the settlement procedures set forth in Section 3.6(brequirements of Article IX).;
(iid) The applicable Borrowers subject to subparagraph (a) above, the Owner Trustee will enter into an agreement not materially different from the Indenture to provide for the securing thereunder of the Replacement Notes issued by the Owner Trustee pursuant to this Article XI in like manner as the Notes refunded;
(e) on the Refunding Date and as a condition precedent to such Refunding, the entire principal amount of Notes, together with accrued interest thereon, the Make Whole Premium Amount, if any, and all other sums due to the Lenders under the Operative Documents shall be prepaid or paid in accordance with Section 2.12 of the Indenture;
(f) the Lessee shall pay to the Swingline Lender on demand the amount of such Swingline Loans to the extent amounts received from Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required cause to be refunded. In addition, the applicable Borrowers hereby authorize the Administrative Agent to charge any account maintained by such applicable Borrowers with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of the applicable Swingline Loans to the extent amounts received from Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the applicable Borrowers from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in accordance with their respective Pro Rata Share (unless the amounts so recovered by or on behalf of such applicable Borrowers pertain to Owner Participant a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Swingline Lender has received notice in the manner required pursuant to Section 13.4 and which such Event of Default has not been waived by the Required Lenders or the Lenders, as applicable).
(iii) Each Lender acknowledges and agrees that its obligation to refund Swingline Loans in accordance with the terms of this Section 2.2 and Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.2 and Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Revolving Loan would have been made, purchase an undivided participating interest in any Swingline Loan to be refunded Refunding fee in an amount equal to its Pro Rata Share $150,000 (it being understood that one payment of $150,000 will discharge the Lessee's obligation under this Section 11.1(f) and Zenith of Texas' obligation under Section 11.1(f) of the aggregate amount Mexican Participation Agreement);
(g) such refinancing shall not result in a violation of Applicable Law and the Lessee, the Guarantor, the Owner Participant, the Owner Trustee and the Indenture Trustee shall have received (i) such opinions of counsel as they may reasonably request concerning compliance with Applicable Law relating to the sale of securities and (ii) such other opinions of counsel and such certificates and other documents, each in form and substance satisfactory to them, as they may reasonably request in connection with the terms and conditions of this Article XI;
(h) all necessary authorizations, Governmental Actions, approvals and consents in connection with such Refunding shall have been obtained;
(i) as a result of such Swingline Loan. Each Lender will immediately transfer to the Swingline Lender, in immediately available fundsRefunding, the amount of its participation and upon receipt thereof the Swingline Lender will deliver to such Lender a certificate evidencing such participation dated the date of receipt of such funds and for such amount. Whenever, at any time after the Swingline Lender has received from any Lender such Lender’s participating interest in a Swingline Loan, the Swingline Lender receives any payment on account thereof, the Swingline Lender will distribute to such Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded).Equity Amount shall not increase or decrease; and
Appears in 1 contract
Refunding. (i) The Swingline Lender, at any time and from time to time in its sole and absolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swingline Lender to act on its behalf), by written notice given no later than 12:00 p.m. on any Business Day request each Lender to make, and each Lender hereby agrees to make, a Revolving Credit Loan as a Base Rate Loan in an amount equal to such Lender’s Commitment Percentage of the aggregate amount of the Swingline Loans outstanding on the date of such notice, to repay the Swingline Lender. Each Lender shall make the amount of such Revolving Credit Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such notice. The proceeds of such Revolving Credit Loans shall be refunded immediately made available by Lenders in accordance with the settlement procedures set forth in Section 3.6(b)Administrative Agent to the Swingline Lender for application by the Swingline Lender to the repayment of the Swingline Loans. No Lender’s obligation to fund its respective Commitment Percentage of a Swingline Loan shall be affected by any other Lender’s failure to fund its Commitment Percentage of a Swingline Loan, nor shall any Lender’s Commitment Percentage be increased as a result of any such failure of any other Lender to fund its Commitment Percentage of a Swingline Loan.
(ii) The applicable Borrowers Borrower shall pay to the Swingline Lender on demand demand, and in any event on the Maturity Date, in immediately available funds the amount of such Swingline Loans to the extent amounts received from Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. In addition, the applicable Borrowers hereby authorize the Administrative Agent to charge any account maintained by such applicable Borrowers with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of the applicable Swingline Loans to the extent amounts received from Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the applicable Borrowers Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all the Lenders in accordance with their respective Pro Rata Share (unless the amounts so recovered by or on behalf of such applicable Borrowers pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Swingline Lender has received notice in the manner required pursuant to Section 13.4 and which such Event of Default has not been waived by the Required Lenders or the Lenders, as applicable)Commitment Percentages.
(iii) Each Lender acknowledges and agrees that its obligation to refund If for any reason any Swingline Loans in accordance with the terms of this Section 2.2 and Section 3.6 is absolute and unconditional and shall Loan cannot be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Furtherrefinanced with a Revolving Credit Loan pursuant to Section 2.2(b)(i), each Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.2 and Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender willshall, on the date the applicable such Revolving Credit Loan would was to have been mademade pursuant to the notice referred to in Section 2.2(b)(i), purchase for cash an undivided participating interest in any the then outstanding Swingline Loan Loans by paying to be refunded in the Swingline Lender an amount (the “Swingline Participation Amount”) equal to its Pro Rata Share such Xxxxxx’s Commitment Percentage of the aggregate principal amount of such Swingline LoanLoans then outstanding. Each Lender will immediately transfer to the Swingline Lender, in immediately available funds, the amount of its participation and upon receipt thereof the Swingline Lender will deliver to such Lender a certificate evidencing such participation dated the date of receipt of such funds and for such amountParticipation Amount. Whenever, at any time after the Swingline Lender has received from any Lender such Lender’s participating interest in a Swingline LoanParticipation Amount, the Swingline Lender receives any payment on account thereofof the Swingline Loans, the Swingline Lender will distribute to such Lender its participating interest in such amount Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such LenderXxxxxx’s participating interest was outstanding and fundedfunded and, in the case of principal and interest payments, to reflect such Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swingline Loans then due); provided that in the event that such payment received by the Swingline Lender is required to be returned, such Lender will return to the Swingline Lender any portion thereof previously distributed to it by the Swingline Lender.
(iv) Each Lender’s obligation to make the Revolving Credit Loans referred to in Section 2.2(b)(i) and to purchase participating interests pursuant to Section 2.2(b)(iii) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Lender or the Borrower may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Article VI, (C) any adverse change in the condition (financial or otherwise) of the Borrower, (D) any breach of this Agreement or any other Loan Document by the Borrower or any other Lender or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(v) If any Lender fails to make available to the Administrative Agent, for the account of the Swingline Lender, any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.2(b) by the time specified in Section 2.2(b)(i) or 2.2(b)(iii), as applicable, the Swingline Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan or Swingline Participation Amount, as the case may be. A certificate of the Swingline Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (v) shall be conclusive absent manifest error.
Appears in 1 contract
Refunding. (i) The applicable Swingline Lender, at any time and from time to time in its sole and absolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swingline Lenders to act on its behalf), by written notice given no later than 11:00 a.m. on any Business Day request each Lender to make, and each Lender hereby agrees to make, a Revolving Loan as a Base Rate Loan in an amount equal to such Lender’s Applicable Percentage of the aggregate amount of the Swingline Loans outstanding on the date of such notice, to repay the applicable Swingline Lender. Each Lender shall make the amount of such Revolving Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such notice. The proceeds of such Revolving Loans shall be refunded immediately made available by Lenders in accordance with the settlement procedures set forth in Section 3.6(b)Administrative Agent to the applicable Swingline Lender for application by such Swingline Lender to the repayment of the Swingline Loans. No Lender’s obligation to fund its respective Applicable Percentage of a Swingline Loan shall be affected by any other Lender’s failure to fund its Applicable Percentage of a Swingline Loan, nor shall any Lender’s Applicable Percentage be increased as a result of any such failure of any other Lender to fund its Applicable Percentage of a Swingline Loan.
(ii) The applicable Borrowers Borrower shall pay to the applicable Swingline Lender on demand demand, and in any event on the date specified in Section 2.3(d), in immediately available funds the amount of such Swingline Loans to the extent amounts received from the Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. In addition, the applicable Borrowers hereby authorize Borrower irrevocably authorizes the Administrative Agent to charge any account maintained by such applicable Borrowers the Borrower with the applicable Swingline Lender (up to the amount available therein) in order to immediately pay the such Swingline Lender the amount of the applicable such Swingline Loans to the extent amounts received from the Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount paid to the applicable Swingline Lender shall be recovered by or on behalf of the applicable Borrowers Borrower from the such Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all the Lenders in accordance with their respective Pro Rata Share (unless the amounts so recovered by or on behalf of such applicable Borrowers pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Swingline Lender has received notice in the manner required pursuant to Section 13.4 and which such Event of Default has not been waived by the Required Lenders or the Lenders, as applicable)Applicable Percentages.
(iii) Each Lender acknowledges and agrees that its obligation to refund If for any reason any Swingline Loans in accordance with the terms of this Section 2.2 and Section 3.6 is absolute and unconditional and shall Loan cannot be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Furtherrefinanced with a Revolving Loan pursuant to Section 2.13(b)(i), each Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.2 and Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender willshall, on the date the applicable such Revolving Loan would was to have been mademade pursuant to the notice referred to in Section 2.13(b)(i), purchase for cash an undivided participating interest in any the then outstanding Swingline Loan Loans by paying to be refunded in the applicable Swingline Lender an amount (the “Swingline Participation Amount”) equal to its Pro Rata Share such Applicable Percentage of the aggregate principal amount of such Swingline LoanLender’s Swingline Loans then outstanding. Each Lender will immediately transfer to the applicable Swingline Lender, in immediately available funds, the amount of its participation and upon receipt thereof the Swingline Lender will deliver to such Lender a certificate evidencing such participation dated the date of receipt of such funds and for such amountParticipation Amount. Whenever, at any time after the applicable Swingline Lender has received from any Lender such Lender’s participating interest in a Swingline LoanParticipation Amount, the such Swingline Lender receives any payment on account thereofof the Swingline Loans, the such Swingline Lender will distribute to such Lender its participating interest in such amount Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such LenderXxxxxx’s participating interest was outstanding and fundedfunded and, in the case of principal and interest payments, to reflect such Xxxxxx’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all such Swingline Loans then due); provided that in the event that such payment received by the applicable Swingline Lender is required to be returned, such Lender will return to such Swingline Lender any portion thereof previously distributed to it by such Swingline Lender.
(iv) Each Lender’s obligation to make the Revolving Loans referred to in Section 2.13(b)(i) and to purchase participating interests pursuant to Section 2.13(b)(iii) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Lender or the Borrower may have against the applicable Swingline Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Article IX, (C) any adverse change in the condition (financial or otherwise) of the Borrower, (D) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Lender or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Refunding. So long as no Termination Event or Incipient Termination Event shall be in existence, and all Funding Dates have been completed and subject to satisfaction of the terms and conditions set forth in this Article XII and in Section 2.12 of the Indenture, the Co-Lessee shall have the right to request the Owner Participant to effect, and the Owner Participant, the Owner Trustee and the Indenture Trustee will cooperate to effect, an optional prepayment of all, but not less than all, of the Notes pursuant to Section 2.12 of the Indenture as part of a refunding or refinancing, on the terms set forth in this Article XII and such Section 2.12 (such refunding or refinancing, a "Refunding"); provided, that the Lessee shall have the right to so request only one Refunding during the term of the Notes. In connection with a refunding or refinancing:
(a) there shall be no material change in the Operative Documents except to the extent provided in clause (c) and for the inclusion, if any, of additional covenants upon the Co-Lessee which are acceptable to the Co-Lessee, and specifically, there shall be no change in the Operative Documents adverse to the Owner Participant or the Owner Trustee, in any such Person's reasonable judgment, including the provisions of the Indenture providing the Owner Trustee with rights in the event of an Indenture Default or an Indenture Event of Default;
(b) the Lessee, the Co-Lessee, the Owner Participant, the Owner Trustee, the Indenture Trustee, and any other appropriate parties will enter into an agreement, in form and substance satisfactory to such Persons, providing for (i) Swingline Loans the issuance and sale by the Owner Trustee on the date specified in such agreement (for the purposes of this Article XII, the "Refunding Date") of debt securities in an aggregate principal amount (in the lawful currency of the U.S.) equal to the aggregate outstanding principal amount of the Notes on the Refunding Date (the "Replacement Notes"), (ii) payments by the Co-Lessee to the Person or Persons entitled thereto of all other amounts, in respect of accrued interest, and Make Whole Premium Amount, if any, payable on such Refunding Date and all other amounts due and owing to the Noteholders under the Operative Documents, and (iii) such other provisions as are reasonably acceptable to the Owner Participant, the Owner Trustee, the Indenture Trustee, the Lessee and the Co-Lessee;
(c) the Lessee and the Owner Trustee will amend the Lease to provide that Rent payable in respect of the period from and after the Refunding Date shall be refunded by Lenders recalculated to preserve the Net Economic Return which the Owner Participant would have realized had such refunding or refinancing not occurred; provided, that the net present value of Rent shall be minimized to the extent consistent therewith, and amounts payable in respect of Casualty Value, Termination Value and EBO Price from and after the Refunding Date shall be appropriately recalculated to preserve the Net Economic Return which the Owner Participant would have realized had such refunding or refinancing not occurred (it being agreed that any recalculations pursuant to this clause (c) shall be performed in accordance with the settlement procedures set forth in Section 3.6(brequirements of Article X).;
(iid) The applicable Borrowers subject to subparagraph (a) above, the Owner Trustee will enter into an agreement not materially different from the Indenture to provide for the securing thereunder of the Replacement Notes issued by the Owner Trustee pursuant to this Article XII in like manner as the Notes refunded;
(e) on the Refunding Date and as a condition precedent to such Refunding, the entire principal amount of Notes, together with accrued interest thereon, the Make Whole Premium Amount, if any, and all other sums due to the Lenders under the Operative Documents shall be prepaid or paid in accordance with Section 2.12 of the Indenture;
(f) the Co-Lessee shall pay to the Swingline Lender on demand the amount of such Swingline Loans to the extent amounts received from Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. In addition, the applicable Borrowers hereby authorize the Administrative Agent to charge any account maintained by such applicable Borrowers with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of the applicable Swingline Loans to the extent amounts received from Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the applicable Borrowers from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in accordance with their respective Pro Rata Share (unless the amounts so recovered by or on behalf of such applicable Borrowers pertain to Owner Participant a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Swingline Lender has received notice in the manner required pursuant to Section 13.4 and which such Event of Default has not been waived by the Required Lenders or the Lenders, as applicable).
(iii) Each Lender acknowledges and agrees that its obligation to refund Swingline Loans in accordance with the terms of this Section 2.2 and Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.2 and Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Revolving Loan would have been made, purchase an undivided participating interest in any Swingline Loan to be refunded Refunding fee in an amount equal to its Pro Rata Share $25,000;
(g) the Lessee, the Owner Participant, the Owner Trustee and the Indenture Trustee shall have received (i) such opinions of counsel as they may reasonably request concerning compliance with Applicable Law relating to the aggregate amount sale of securities and (ii) such other opinions of counsel and such certificates and other documents, each in form and substance satisfactory to them, as they may reasonably request in connection with the terms and conditions of this Article XII;
(h) all necessary authorizations, Governmental Actions, approvals and consents in connection with such Refunding shall have been obtained; (i) as a result of such Swingline Loan. Each Lender will immediately transfer to the Swingline Lender, in immediately available fundsRefunding, the amount of its participation and upon receipt thereof the Swingline Lender will deliver to such Lender a certificate evidencing such participation dated the date of receipt of such funds and for such amount. Whenever, at any time after the Swingline Lender has received from any Lender such Lender’s participating interest in a Swingline Loan, the Swingline Lender receives any payment on account thereof, the Swingline Lender will distribute to such Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded).Equity Amount shall not increase or decrease; and
Appears in 1 contract
Refunding. (i) The applicable Swingline Lender, at any time and from time to time in its sole and absolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swingline Lenders to act on its behalf), by written notice given no later than 11:00 a.m. on any Business Day request each Lender to make, and each Lender hereby agrees to make, a Revolving Loan as a Base Rate Loan in an amount equal to such Lender’s Applicable Percentage of the aggregate amount of the Swingline Loans outstanding on the date of such notice, to repay the applicable Swingline Lender. Each Lender shall make the amount of such Revolving Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such notice. The proceeds of such Revolving Loans shall be refunded immediately made available by Lenders in accordance with the settlement procedures set forth in Section 3.6(b)Administrative Agent to the applicable Swingline Lender for application by such Swingline Lender to the repayment of the Swingline Loans. No Lender’s obligation to fund its respective Applicable Percentage of a Swingline Loan shall be affected by any other Lender’s failure to fund its Applicable Percentage of a Swingline Loan, nor shall any Lender’s Applicable Percentage be increased as a result of any such failure of any other Lender to fund its Applicable Percentage of a Swingline Loan.
(ii) The applicable Borrowers Borrower shall pay to the applicable Swingline Lender on demand demand, and in any event on the date specified in Section 2.3(d), in immediately available funds the amount of such Swingline Loans to the extent amounts received from the Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. In addition, the applicable Borrowers hereby authorize Borrower irrevocably authorizes the Administrative Agent to charge any account maintained by such applicable Borrowers the Borrower with the applicable Swingline Lender (up to the amount available therein) in order to immediately pay the such Swingline Lender the amount of the applicable such Swingline Loans to the extent amounts received from the Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount paid to the applicable Swingline Lender shall be recovered by or on behalf of the applicable Borrowers Borrower from the such Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all the Lenders in accordance with their respective Pro Rata Share (unless the amounts so recovered by or on behalf of such applicable Borrowers pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Swingline Lender has received notice in the manner required pursuant to Section 13.4 and which such Event of Default has not been waived by the Required Lenders or the Lenders, as applicable)Applicable Percentages.
(iii) Each Lender acknowledges and agrees that its obligation to refund If for any reason any Swingline Loans in accordance with the terms of this Section 2.2 and Section 3.6 is absolute and unconditional and shall Loan cannot be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Furtherrefinanced with a Revolving Loan pursuant to Section 2.13(b)(i), each Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.2 and Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender willshall, on the date the applicable such Revolving Loan would was to have been mademade pursuant to the notice referred to in Section 2.13(b)(i), purchase for cash an undivided participating interest in any the then outstanding Swingline Loan Loans by paying to be refunded in the applicable Swingline Lender an amount (the “Swingline Participation Amount”) equal to its Pro Rata Share such Applicable Percentage of the aggregate principal amount of such Swingline LoanLender’s Swingline Loans then outstanding. Each Lender will immediately transfer to the applicable Swingline Lender, in immediately available funds, the amount of its participation and upon receipt thereof the Swingline Lender will deliver to such Lender a certificate evidencing such participation dated the date of receipt of such funds and for such amountParticipation Amount. Whenever, at any time after the applicable Swingline Lender has received from any Lender such Lender’s participating interest in a Swingline LoanParticipation Amount, the such Swingline Lender receives any payment on account thereofof the Swingline Loans, the such Swingline Lender will distribute to such Lender its participating interest in such amount Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and fundedfunded and, in the case of principal and interest payments, to reflect such Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all such Swingline Loans then due); provided that in the event that such payment received by the applicable Swingline Lender is required to be returned, such Lender will return to such Swingline Lender any portion thereof previously distributed to it by such Swingline Lender.
(iv) Each Lender’s obligation to make the Revolving Loans referred to in Section 2.13(b)(i) and to purchase participating interests pursuant to Section 2.13(b)(iii) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Lender or the Borrower may have against the applicable Swingline Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in ARTICLE IX, (C) any adverse change in the condition (financial or otherwise) of the Borrower, (D) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Lender or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
Appears in 1 contract
Refunding. (iA) The Swingline Lender may (whether or not an Event of Default has occurred and is continuing), on behalf of any Borrower (each of which hereby irrevocably directs the Swingline Lender to act on its behalf) by written notice to the Administrative Agent given no later than 11:00 a.m. on any Business Day request each Lender to make, and each Lender hereby agrees to make, a Revolving Loan as a Base Rate Loan in an amount equal to such Lender’s Ratable Share of the aggregate amount of the Swingline Loans outstanding on the date of such notice, to repay the Swingline Lender. Each Lender shall make the amount of such Revolving Loan available to the Administrative Agent in immediately available funds at the Payment Office not later than 1:00 p.m. on the day specified in such notice. The proceeds of such Revolving Loans (to the extent made available to the Administrative Agent) shall be refunded immediately made available by Lenders in accordance with the settlement procedures set forth in Section 3.6(b)Administrative Agent to the Swingline Lender for application by the Swingline Lender to the repayment of the Swingline Loans. No Lender’s obligation to fund its respective Ratable Share of a Swingline Loan shall be affected by any other Lender’s failure to fund its Ratable Share of a Swingline Loan, nor shall any Lender’s Ratable Share be increased as a result of any such failure of any other Lender to fund its Ratable Share. Any such Swingline Loans repaid shall no longer be outstanding as Swingline Loans but shall be outstanding Revolving Loans.
(iiB) The applicable Borrowers Subject to Section 2.1(b)(ii)(C), the Borrower that received the Swingline Loan shall pay to the Swingline Lender on demand in immediately available funds the amount of such Swingline Loans to the extent amounts received from the Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. In addition, the applicable Borrowers hereby authorize Borrower irrevocably authorizes the Administrative Agent to charge any account maintained by such applicable Borrowers the Borrower with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of the applicable such Swingline Loans to the extent amounts received from the Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the applicable Borrowers Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in accordance with their respective Pro Rata Share the Lenders.
(unless the amounts so recovered by or on behalf of such applicable Borrowers pertain to a C) If for any reason any Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Swingline Lender has received notice in the manner required cannot be refinanced with a Revolving Loan pursuant to Section 13.4 and which such Event of Default has not been waived by the Required Lenders or the Lenders, as applicable2.1(b)(ii)(A).
(iii) Each Lender acknowledges and agrees that its obligation to refund Swingline Loans in accordance with the terms of this Section 2.2 and Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.2 and Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender willshall, on the date the applicable such Revolving Loan would was to have been made, made pursuant to the notice referred to in Section 2.1(b)(ii)(A) purchase for cash an undivided participating interest in any the then outstanding Swingline Loan Loans by paying to be refunded in the Swingline Lender an amount (the “Swingline Participation Amount”) equal to its Pro Rata such Lender’s Ratable Share of the aggregate principal amount of such Swingline LoanLoans then outstanding. Each Lender will immediately transfer to the Swingline Lender, in immediately available funds, the amount of its participation and upon receipt thereof the Swingline Lender will deliver to such Lender a certificate evidencing such participation dated the date of receipt of such funds and for such amountParticipation Amount. Whenever, at any time after the Swingline Lender has received from any Lender such Lender’s participating interest in a Swingline LoanParticipation Amount, the Swingline Lender receives any payment on account thereofof the Swingline Loans, the Swingline Lender will distribute to such Lender its participating interest in such amount Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and fundedfunded and, in the case of principal and interest payments, to reflect such Lender’s Ratable Share of such payment if such payment is not sufficient to pay the principal of and interest on all Swingline Loans then due); provided that in the event that such payment received by the Swingline Lender is required to be returned, such Lender will return to the Swingline Lender any portion thereof previously distributed to it by the Swingline Lender.
(D) Each Lender’s obligation to make the Revolving Loans referred to in Section 2.1(b)(ii)(A) and to purchase participating interests pursuant to Section 2.1(b)(ii)(C) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Lender or any Borrower may have against the Swingline Lender, any Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or an Event of Default, (C) any adverse change in the condition (financial or otherwise) of the Borrower, (D) any breach of this Agreement or any other Credit Document by any Borrower, or Lender or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(E) If any Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.1(b) by the time specified herein, the Swingline Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the applicable Federal Funds Rate, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan or Swingline Participation Amount, as the case may be. A certificate of the Swingline Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (E) shall be conclusive absent manifest error.
Appears in 1 contract
Samples: Credit Agreement (Allied World Assurance Co Holdings, AG)
Refunding. (i) Swingline Loans shall be refunded by the Lenders on demand by the Swingline Lender. Such refundings shall be made by the Lenders in accordance with their respective Commitment Percentages and shall thereafter be reflected as Revolving Credit Loans of the settlement procedures set forth in Section 3.6(b).Lenders on the books and
(ii) The applicable Borrowers Borrower shall pay to the Swingline Lender on demand the amount of such Swingline Loans to the extent amounts received from the Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. In addition, the applicable Borrowers Borrower hereby authorize authorizes the Administrative Agent to charge any account maintained by such applicable Borrowers Borrower with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of the applicable such Swingline Loans to the extent amounts received from the Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the applicable Borrowers Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all the Lenders in accordance with their respective Pro Rata Share Commitment Percentages (unless the amounts so recovered by or on behalf of such applicable Borrowers Borrower pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Swingline Lender Administrative Agent has received notice in the manner required pursuant to Section 13.4 11.3 and which such Event of Default has not been waived by the Required Lenders or the Lenders, as applicable).
(iii) Each Lender acknowledges and agrees that its obligation to refund Swingline Loans in accordance with the terms of this Section 2.2 and Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.2 and Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Revolving Loan would have been made, purchase an undivided participating interest in any Swingline Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such Swingline Loan. Each Lender will immediately transfer to the Swingline Lender, in immediately available funds, the amount of its participation and upon receipt thereof the Swingline Lender will deliver to such Lender a certificate evidencing such participation dated the date of receipt of such funds and for such amount. Whenever, at any time after the Swingline Lender has received from any Lender such Lender’s participating interest in a Swingline Loan, the Swingline Lender receives any payment on account thereof, the Swingline Lender will distribute to such Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded)VI.
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Samples: Credit Agreement (Kforce Inc)
Refunding. (ia) Swingline Loans shall be refunded by Lenders in accordance with the settlement procedures set forth in Section 3.6(b).
(ii) The applicable Borrowers shall pay to the Swingline Lender on demand the amount of such Swingline Loans to the extent amounts received from Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. In addition, the applicable Borrowers hereby authorize the Administrative Agent to charge any account maintained by such applicable Borrowers with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of the applicable Swingline Loans to the extent amounts received from Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the applicable Borrowers from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in accordance with their respective Pro Rata Share (unless the amounts so recovered by or on behalf of such applicable Borrowers pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Swingline Lender has received notice in the manner required pursuant to Section 13.4 and which such So long as no Event of Default has not been waived ---------- occurred and is continuing, the Owner Participant and the Owner Trustee each agree that (i) prepayment of the Certificates as contemplated by Section 6.02(B) of the Indenture shall be made only with the consent of the Lessee, and (ii) to the extent that an optional prepayment of the Certificates is permitted by the Required Lenders Indenture, they will each cooperate with the Lessee to implement, in addition to other prepayments permitted or required by this Agreement or the LendersLease, as applicable).
not more than one refunding of the Certificates (iii) Each Lender acknowledges and agrees that its obligation to refund Swingline Loans in accordance with the terms of this Section 2.2 and Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction the execution, delivery and/or provision of any appropriate additional or modified amendment, representation, warranty, certificate, opinion or other document that may reasonably be requested by the Lessee or any other person in connection with such refunding and are reasonably satisfactory to, and in their judgment not adverse to the interests of, the Owner Participant and the Owner Trustee) at such interest rates and on such other terms as may be satisfactory to the Lessee and at the expense of the conditions Lessee, provided that (x) such refunding shall satisfy -------- the requirements set forth in Article 5. FurtherSection 3(e) of the Lease, each Lender agrees (y) the outstanding principal amount of the Certificates shall not be changed in any such refunding transaction and acknowledges that if prior (z) all payments of Basic Rent and all payments relating to the Certificates shall always be U.S. dollar denominated. Notwithstanding anything herein to the contrary, no refunding will be permitted unless the Owner Participant shall have received at least 3 Business Days prior written notice of the closing date of such refunding, the Owner Participant shall have been provided such longer period required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any outstanding Swingline Loans loss or expense or bear any increased risk as a result of such refunding (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75- 28 and Section 467 of the Code (to the extent the original rent structure under the Lease complied with Revenue Procedures 75-21 and 75-28 and Section 467 of the Code on the Closing Date, it being understood that, to the extent that the original rent structure complied on the Closing Date with any grandfather or similar provisions in any regulations under Section 467 or other administrative pronouncement interpreting Section 467, such structure shall be deemed to have been in compliance with Section 467 on the Closing Date)) for which it has not been or will not have been indemnified by the Lessee in a manner satisfactory in all respects to the Owner Participant.
(b) The Lessee hereby agrees to pay on an after-tax basis all reasonable fees and out-of-pocket expenses (including without limitation, reasonable fees and expenses of counsel) incurred by the Owner Participant, the Owner Trustee, and the Indenture Trustee in connection with any refunding or amendment pursuant to this Section 2.2 and 20.
(c) The Lessee agrees that neither it nor any of its Affiliates shall at any time purchase or hold certificates issued pursuant to Section 3.6, one of 20(a) hereof ("Refunding Certificates") other than Refunding Certificates scheduled to mature within the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, twelve month period beginning on the date of such purchase but in no event shall the applicable Revolving Loan would have been made, purchase an undivided participating interest in Lessee and its Affiliates hold at any Swingline Loan one time Refunding Certificates representing more than 5% of the Refunding Certificates then outstanding (including such Refunding Certificates held by the Lessee and its Affiliates). To the extent any installment of Basic Rent due is to be refunded applied in redemption of outstanding Refunding Certificates, maturing on a Basic Rent payment date, the Lessee shall have the right but not the obligation to either (i) deliver to the Indenture Trustee for cancellation, in payment of a like amount of Basic Rent, a principal amount of Refunding Certificates not exceeding the principal amount of Refunding Certificates maturing on such date or (ii) if such an optional redemption is permitted under the terms of any Refunding Certificate, have Refunding Certificates held by it in a principal amount equal not exceeding the principal amount of Refunding Certificate to its Pro Rata Share be redeemed on such date redeemed in priority to all other Refunding Certificates.
(d) [Intentionally Omitted]
(e) In the case of a refunding involving a public offering of debt securities, (1) the offering materials (including any registration statement) for the refunding transaction shall describe the Owner Participant and the Owner Trustee, and the terms of the aggregate amount of such Swingline Loan. Each Lender will immediately transfer transaction among the Owner Participant, the Owner Trustee and the Lessee, only to the Swingline Lenderextent required by applicable United States federal and state securities laws, in immediately available fundsand such offering materials shall be otherwise reasonably acceptable to the Owner Participant and the Owner Trustee to the extent such materials describe the Owner Participant or the Owner Trustee or the terms of the transaction among the Owner Participant, the amount Owner Trustee and the Lessee, but such offering materials shall not include any financial information about the Owner Participant and (2) the structure of its participation and upon receipt thereof the Swingline Lender will deliver offering shall be reasonably satisfactory to such Lender the Owner Participant from a certificate evidencing such participation dated the date tax point of receipt of such funds and for such amount. Whenever, view.
(f) No refunding pursuant to this Section 20 shall permit any floating rate debt to be outstanding at any time after the Swingline Lender has received from any Lender such Lender’s participating interest in a Swingline LoanSeptember 30, 1999.
(g) The Lessee, the Swingline Lender receives any payment on account thereofIndenture Trustee, the Swingline Lender will distribute Owner Trustee and the Owner Participant each agree to such Lender its participating interest in such amount execute any document necessary or advisable to implement Section 20 of this Agreement (appropriately adjustedincluding, in without limitation, the case execution, delivery and/or provision of interest paymentsany appropriate additional or modified amendment, to reflect representation, warranty, certificate, opinion or other document that may reasonably be requested by the period of time during which such Lender’s participating interest was outstanding and fundedLessee or any other person).
Appears in 1 contract
Refunding. (i) Swingline Loans shall be refunded by Lenders in accordance with the settlement procedures set forth in Section 3.6(b).
(ii) The applicable Borrowers shall pay to the Swingline Lender on demand the amount of such Swingline Loans to the extent amounts received from Lenders are not sufficient to repay in full the outstanding Swingline Loans requested So long as no Material Default or required to be refunded. In addition, the applicable Borrowers hereby authorize the Administrative Agent to charge any account maintained by such applicable Borrowers with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of the applicable Swingline Loans to the extent amounts received from Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the applicable Borrowers from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in accordance with their respective Pro Rata Share (unless the amounts so recovered by or on behalf of such applicable Borrowers pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which shall be in existence and Zenith simultaneously requests a refunding or refinancing under the Swingline Lender has received notice in the manner required pursuant U.S. Participation Agreement, and subject to Section 13.4 and which such Event of Default has not been waived by the Required Lenders or the Lenders, as applicable).
(iii) Each Lender acknowledges and agrees that its obligation to refund Swingline Loans in accordance with the terms of this Section 2.2 and Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the terms and conditions set forth in this Article 5. FurtherXI and in Section 2.12 of the Indenture, each Lender agrees the Lessee shall have the right to request the Owner Participant to effect, and acknowledges that if prior the Owner Participant, the Owner Trustee and the Indenture Trustee agree, at the sole cost and expense of the Lessee whether or not such refunding is consummated, to cooperate to effect, an optional prepayment of all, but not less than all, of the refunding of any outstanding Swingline Loans Notes pursuant to this Section 2.2 and Section 3.6, one 2.12 of the events described in Section 11.1(f), (g) Indenture as part of a refunding or (h) shall have occurred, each Lender willrefinancing, on the date terms set forth in this Article XI and such Section 2.12 (such refunding or refinancing, a "Refunding"); provided, that the applicable Revolving Loan would Lessee shall have been madethe right to so request a Refunding and a "Refunding" under and as defined in the U.S. Participation Agreement only twice in the aggregate; provided further, purchase an undivided participating interest that a substantially simultaneous Refunding hereunder with a "Refunding" under the U.S. Participation Agreement shall be deemed as one refunding request for purposes of such limit and; provided further, that the Owner Participant shall in any Swingline Loan event have the right to be refunded consent to any such Refunding, which consent the Owner Participant may withhold in the Owner Participant's sole good faith discretion; except that the Owner Participant shall not have such consent right if and to the extent Hunton & Xxxxxxxx, or such other counsel selected by the Owner Participant and reasonably acceptable to the Lessee, delivers an amount equal opinion to its Pro Rata Share the Owner Participant (which opinion the Owner Participant agrees to timely request at the time of such Refunding) that, as a result of a change in or clarification of Regulations under Section 467 of the aggregate amount Code (which change or clarification occurs after the Equipment Closing Date and before such Refunding), the absence of such Swingline Loanconsent right shall not adversely affect the eligibility of the Lease for initial and continued compliance with Section 1.467-3(c)(2)(i) of the Regulations. Each Lender will immediately transfer to the Swingline Lender, in immediately available funds, the amount of its participation and upon receipt thereof the Swingline Lender will deliver to such Lender In connection with a certificate evidencing such participation dated the date of receipt of such funds and for such amount. Whenever, at any time after the Swingline Lender has received from any Lender such Lender’s participating interest in a Swingline Loan, the Swingline Lender receives any payment on account thereof, the Swingline Lender will distribute to such Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded).Refunding:
Appears in 1 contract
Refunding. (i) The Swingline Lender, at any time and from time to time in its sole and absolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swingline Lender to act on its behalf), by written notice given no later than 12:00 p.m. on any Business Day request each Lender to make, and each Lender hereby agrees to make, a Revolving Credit Loan as a Base Rate Loan in an amount equal to such Lender’s Commitment Percentage of the aggregate amount of the Swingline Loans outstanding on the date of such notice, to repay the Swingline Lender. Each Lender shall make the amount of such Revolving Credit Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such notice. The proceeds of such Revolving Credit Loans shall be refunded immediately made available by Lenders in accordance with the settlement procedures set forth in Section 3.6(b).Administrative Agent to the Swingline Lender for application by the Swingline Lender to the repayment of the Swingline Loans. No Lender’s obligation to fund its respective Commitment Percentage of a Swingline Loan shall be affected by any other Lender’s failure to fund its Commitment Percentage of a Swingline Loan, nor shall any Lender’s
(ii) The applicable Borrowers Borrower shall pay to the Swingline Lender on demand demand, and in any event on the Maturity Date, in immediately available funds the amount of such Swingline Loans to the extent amounts received from Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. In addition, the applicable Borrowers hereby authorize the Administrative Agent to charge any account maintained by such applicable Borrowers with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of the applicable Swingline Loans to the extent amounts received from Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the applicable Borrowers Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all the Lenders in accordance with their respective Pro Rata Share (unless the amounts so recovered by or on behalf of such applicable Borrowers pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Swingline Lender has received notice in the manner required pursuant to Section 13.4 and which such Event of Default has not been waived by the Required Lenders or the Lenders, as applicable)Commitment Percentages.
(iii) Each Lender acknowledges and agrees that its obligation to refund If for any reason any Swingline Loans in accordance with the terms of this Section 2.2 and Section 3.6 is absolute and unconditional and shall Loan cannot be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Furtherrefinanced with a Revolving Credit Loan pursuant to Section 2.2(b)(i), each Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.2 and Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender willshall, on the date the applicable such Revolving Credit Loan would was to have been mademade pursuant to the notice referred to in Section 2.2(b)(i), purchase for cash an undivided participating interest in any the then outstanding Swingline Loan Loans by paying to be refunded in the Swingline Lender an amount (the “Swingline Participation Amount”) equal to its Pro Rata Share such Xxxxxx’s Commitment Percentage of the aggregate principal amount of such Swingline LoanLoans then outstanding. Each Lender will immediately transfer to the Swingline Lender, in immediately available funds, the amount of its participation and upon receipt thereof the Swingline Lender will deliver to such Lender a certificate evidencing such participation dated the date of receipt of such funds and for such amountParticipation Amount. Whenever, at any time after the Swingline Lender has received from any Lender such Lender’s participating interest in a Swingline LoanParticipation Amount, the Swingline Lender receives any payment on account thereofof the Swingline Loans, the Swingline Lender will distribute to such Lender its participating interest in such amount Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such LenderXxxxxx’s participating interest was outstanding and fundedfunded and, in the case of principal and interest payments, to reflect such Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swingline Loans then due); provided that in the event that such payment received by the Swingline Lender is required to be returned, such Lender will return to the Swingline Lender any portion thereof previously distributed to it by the Swingline Lender.
(iv) Each Lender’s obligation to make the Revolving Credit Loans referred to in Section 2.2(b)(i) and to purchase participating interests pursuant to Section 2.2(b)(iii) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Lender or the Borrower may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Article VI, (C) any adverse change in the condition (financial or otherwise) of the Borrower, (D) any breach of this Agreement or any other Loan Document by the Borrower or any other Lender or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(v) If any Lender fails to make available to the Administrative Agent, for the account of the Swingline Lender, any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.2(b) by the time specified in Section 2.2(b)(i) or 2.2(b)(iii), as applicable, the Swingline Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the applicable Federal Funds Rate, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan or Swingline Participation Amount, as the case may be. A certificate of the Swingline Lender submitted to any
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Refunding. (i) The Swingline Lender, at any time and from time to time in its sole and absolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swingline Lender to act on its behalf), by written notice given no later than 12:00 p.m. on any Business Day request each Lender to make, and each Lender hereby agrees to make, a Revolving Credit Loan as a Base Rate Loan in an amount equal to such Lender’s Commitment Percentage of the aggregate amount of the Swingline Loans outstanding on the date of such notice, to repay the Swingline Lender. Each Lender shall make the amount of such Revolving Credit Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such notice. The proceeds of such Revolving Credit Loans shall be refunded immediately made available by Lenders in accordance with the settlement procedures set forth in Section 3.6(b)Administrative Agent to the Swingline Lender for application by the Swingline Lender to the repayment of the Swingline Loans. No Lender’s obligation to fund its respective Commitment Percentage of a Swingline Loan shall be affected by any other Lender’s failure to fund its Commitment Percentage of a Swingline Loan, nor shall any Lender’s Commitment Percentage be increased as a result of any such failure of any other Lender to fund its Commitment Percentage of a Swingline Loan.
(ii) The applicable Borrowers Borrower shall pay to the Swingline Lender on demand demand, and in any event on the Maturity Date, in immediately available funds the amount of such Swingline Loans to the extent amounts received from Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. In addition, the applicable Borrowers hereby authorize the Administrative Agent to charge any account maintained by such applicable Borrowers with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of the applicable Swingline Loans to the extent amounts received from Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the applicable Borrowers Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all the Lenders in accordance with their respective Pro Rata Share (unless the amounts so recovered by or on behalf of such applicable Borrowers pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Swingline Lender has received notice in the manner required pursuant to Section 13.4 and which such Event of Default has not been waived by the Required Lenders or the Lenders, as applicable)Commitment Percentages.
(iii) Each Lender acknowledges and agrees that its obligation to refund If for any reason any Swingline Loans in accordance with the terms of this Section 2.2 and Section 3.6 is absolute and unconditional and shall Loan cannot be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Furtherrefinanced with a Revolving Credit Loan pursuant to Section 2.2(b)(i), each Lender agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.2 and Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender willshall, on the date the applicable such Revolving Credit Loan would was to have been mademade pursuant to the notice referred to in Section 2.2(b)(i), purchase for cash an undivided participating interest in any the then outstanding Swingline Loan Loans by paying to be refunded in the Swingline Lender an amount (the “Swingline Participation Amount”) equal to its Pro Rata Share such Lender’s Commitment Percentage of the aggregate principal amount of such Swingline LoanLoans then outstanding. Each Lender will immediately transfer to the Swingline Lender, in immediately available funds, the amount of its participation and upon receipt thereof the Swingline Lender will deliver to such Lender a certificate evidencing such participation dated the date of receipt of such funds and for such amountParticipation Amount. Whenever, at any time after the Swingline Lender has received from any Lender such Lender’s participating interest in a Swingline LoanParticipation Amount, the Swingline Lender receives any payment on account thereofof the Swingline Loans, the Swingline Lender will distribute to such Lender its participating interest in such amount Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and fundedfunded and, in the case of principal and interest payments, to reflect such Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swingline Loans then due); provided that in the event that such payment received by the Swingline Lender is required to be returned, such Lender will return to the Swingline Lender any portion thereof previously distributed to it by the Swingline Lender.
(iv) Each Lender’s obligation to make the Revolving Credit Loans referred to in Section 2.2(b)(i) and to purchase participating interests pursuant to Section 2.2(b)(iii) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Lender or the Borrower may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Article VI, (C) any adverse change in the condition (financial or otherwise) of the Borrower, (D) any breach of this Agreement or any other Loan Document by the Borrower or any other Lender or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(v) If any Lender fails to make available to the Administrative Agent, for the account of the Swingline Lender, any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.2(b) by the time specified in Section 2.2(b)(i) or 2.2(b)(iii), as applicable, the Swingline Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the applicable Federal Funds Rate, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan or Swingline Participation Amount, as the case may be. A certificate of the Swingline Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (v) shall be conclusive absent manifest error.
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