Refunding. 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 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 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, such Lender’s Pro Rata Share of such Swingline Loan or Swingline Loans. Amounts funded by the Lenders pursuant to this Section 2.2(b) shall bear interest payable by the Borrowers at the rate then applicable to Base Rate Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or Event of Default or reduction or termination of the 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 the 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, mutatis mutandis, to the 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 participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender 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, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as the case may be, if and to the extent such payment is required to be refunded to any Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof.
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Samples: Loan and Security Agreement (Mohawk Industries Inc), Loan and Security Agreement (Mohawk Industries Inc)
Refunding. 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 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 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 So long as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Pro Rata Share of such Swingline Loan or Swingline Loans. Amounts funded by the Lenders pursuant to this Section 2.2(b) shall bear interest payable by the Borrowers at the rate then applicable to Base Rate Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a no Material Default or Event of Default shall be in existence and Zenith of Texas simultaneously requests a refunding or reduction or termination refinancing under the Mexican Participation Agreement, and subject to satisfaction of the Commitments, terms and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under conditions set forth in this paragraph by wire transfer of immediately available funds, in the same manner as provided Article XI and 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, mutatis mutandis, to the payment obligations 2.12 of the Lenders)Indenture, the Lessee shall have the right to request the Owner Participant to effect, and the Administrative Agent 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 promptly pay have the right to so request a Refunding and a "Refunding" under and as defined in the Swingline Lender Mexican Participation Agreement only twice in the amounts so received by it from aggregate; provided further, that a substantially simultaneous Refunding hereunder with a "Refunding" under the Lenders. The Administrative Agent Mexican Participation Agreement shall notify be deemed as one refunding request for purposes of such limit and; provided further, that the Administrative Borrower of any participations Owner Participant shall in any Swingline Loan acquired pursuant event have the right to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made consent to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender 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 Refunding, which consent the Administrative Agent Owner Participant may withhold in the Owner Participant's sole good faith discretion; except that the Owner Participant shall be promptly remitted by the Administrative Agent to the Lenders that shall not have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as the case may be, consent right if and to the extent Hunton & Xxxxxxxx, or such payment is 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) 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 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 Borrower for any reason. The purchase of participations in a Swingline Loan recalculations pursuant to this paragraph clause (c) shall be performed in accordance with the requirements of Article IX);
(d) 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 or cause to be paid to the Owner Participant a Refunding fee in an amount equal to $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 Mexican Participation Agreement);
(g) such refinancing shall not relieve result in a violation of Applicable Law and the Borrowers Lessee, the Guarantor, the Owner Participant, the Owner Trustee and the Indenture Trustee shall have received (i) such opinions of any default 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 payment thereof.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 Refunding, the Equity Amount shall not increase or decrease; and
Appears in 1 contract
Refunding. The Swingline Lender (a) So long as no Event of Default has ---------- 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 Indenture, they will each cooperate with the Lessee to implement, in addition to other prepayments permitted or required by this Agreement or the Lease, not more than one refunding of the Certificates (including, without limitation, 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 Lessee, provided that (x) such refunding shall satisfy -------- the requirements set forth in Section 3(e) of the Lease, (y) the outstanding principal amount of the Certificates shall not be changed in any such refunding transaction and (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 given 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 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 Administrative Agent 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 later than 11:00 a.m. on any Business Day require been or will not have been indemnified by the Lenders to acquire participations on such Business Day Lessee in a manner satisfactory in all or a portion 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 Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which the Lenders will participate. Promptly upon receipt of such noticeOwner Participant, the Administrative Agent will give notice thereof to each LenderOwner Trustee, specifying and the Indenture Trustee in such notice such Lender’s Pro Rata Share of such Swingline Loan connection with any refunding 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, such Lender’s Pro Rata Share of such Swingline Loan or Swingline Loans. Amounts funded by the Lenders amendment pursuant to this Section 2.2(b20.
(c) The Lessee agrees that neither it nor any of its Affiliates shall bear interest payable at any time purchase or hold certificates issued pursuant to Section 20(a) hereof ("Refunding Certificates") other than Refunding Certificates scheduled to mature within the twelve month period beginning on the date of such purchase but in no event shall the Lessee and its Affiliates hold at any one time Refunding Certificates representing more than 5% of the Refunding Certificates then outstanding (including such Refunding Certificates held by the Borrowers at Lessee and its Affiliates). To the rate then applicable extent any installment of Basic Rent due is to Base Rate Loans. Each Lender acknowledges and agrees that its be 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 acquire participations either (i) deliver to the Indenture Trustee for cancellation, in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance payment of a Default like amount of Basic Rent, a principal amount of Refunding Certificates not exceeding the principal amount of Refunding Certificates maturing on such date or Event (ii) if such an optional redemption is permitted under the terms of Default or reduction or termination any Refunding Certificate, have Refunding Certificates held by it in a principal amount not exceeding the principal amount of Refunding Certificate to be redeemed on such date redeemed in priority to all other Refunding Certificates.
(d) [Intentionally Omitted]
(e) In the Commitmentscase 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 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 the 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, mutatis mutandis, to the payment obligations of the Lenders)Owner Trustee, and the Administrative Agent shall promptly pay terms of the transaction among the Owner Participant, the Owner Trustee and the Lessee, only to the Swingline Lender the amounts so received extent required by it from the Lenders. The Administrative Agent shall notify the Administrative Borrower of any participations in any Swingline Loan acquired pursuant to this paragraphapplicable United States federal and state securities laws, and thereafter payments in respect of such Swingline Loan offering materials shall be made otherwise reasonably acceptable to the Administrative Agent Owner Participant and not to the Swingline Lender. Any amounts received by the Swingline Lender 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, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as the case may be, if and Owner Trustee to the extent such payment is required materials describe the Owner Participant or the Owner Trustee or the terms of the transaction among the Owner Participant, the Owner Trustee and the Lessee, but such offering materials shall not include any financial information about the Owner Participant and (2) the structure of the offering shall be reasonably satisfactory to be refunded to any Borrower for any reason. The purchase the Owner Participant from a tax point of participations in a Swingline Loan view.
(f) No refunding pursuant to this paragraph Section 20 shall not relieve permit any floating rate debt to be outstanding at any time after September 30, 1999.
(g) The Lessee, the Borrowers Indenture Trustee, the Owner Trustee and the Owner Participant each agree to execute any document necessary or advisable to implement Section 20 of this Agreement (including, without limitation, the execution, delivery and/or provision of any default in appropriate additional or modified amendment, representation, warranty, certificate, opinion or other document that may reasonably be requested by the payment thereofLessee or any other person).
Appears in 1 contract
Refunding. The Swingline Lender may by written notice given 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 Administrative Agent 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) 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 recalculated to preserve the Net Economic Return which the Owner Participant would have realized had such refunding or refinancing not later than 11:00 a.m. 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 requirements of Article X);
(d) 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 any Business Day require 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 to acquire participations on such Business Day under the Operative Documents shall be prepaid or paid in all or a portion accordance with Section 2.12 of the Swingline Loans outstanding. Such notice Indenture;
(f) the Co-Lessee shall 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 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 AgentOwner Participant a Refunding fee in an amount equal to $25,000;
(g) the Lessee, for the account 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 Swingline Lendersale 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 Lender’s Pro Rata Share Refunding shall have been obtained; (i) as a result of such Swingline Loan or Swingline Loans. Amounts funded by Refunding, the Lenders pursuant to this Section 2.2(b) shall bear interest payable by the Borrowers at the rate then applicable to Base Rate Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and Equity Amount shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default increase or Event of Default or reduction or termination of the 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 the 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, mutatis mutandis, to the 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 participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender 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 Agentdecrease; 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, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as the case may be, if and to the extent such payment is required to be refunded to any Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof.and
Appears in 1 contract
Refunding. The If, for any reason a Swingline Lender may by written notice given to Loan is not repaid on the Swingline Maturity Date, the Administrative Agent not later than 11:00 a.m. may, on or after the immediately following Business Day, effect refunding of the unpaid amount of such Swingline Loan as follows:
(i) Without any Business Day require request therefor from the Lenders Borrower, the Administrative Agent may make a Revolving Credit Loan to acquire participations the Borrower on such Business Day in behalf of the Revolving Credit Lenders, the proceeds of which shall be applied to repay all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate unpaid amount of such Swingline Loans in which the Lenders will participateLoan. Promptly upon receipt of Upon making such noticeRevolving Credit Loan, the Administrative Agent will give send notice thereof to the Borrower and the Revolving Credit Lenders, whereupon the Revolving Credit Lenders (including the 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) Notwithstanding any other provisions of this Agreement to the contrary, to the extent that all or any portion of such Revolving Credit Loan may not be (A) made by the Administrative Agent because any of the conditions precedent to the 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 (B) legally made by the Administrative Agent to the Borrower for any other reason (including the bankruptcy or insolvency of the Borrower), each LenderRevolving Credit Lender severally, specifying 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 notice Swingline Loans in an amount equal to such Revolving Credit Lender’s Pro Rata Share pro rata share of such Swingline Loan or Swingline LoansLoan. Each such Revolving Credit Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay will immediately transfer to the Administrative Agent, for in immediately available funds, the account amount of its participation, and the proceeds of such participation shall be distributed by the Administrative Agent to the Swingline Lender, to such Lender’s Pro Rata Share extent as will reduce the amount of such the participating interest retained by the Swingline Loan or Lender in its Swingline Loans. Amounts funded by In the Lenders pursuant event any Revolving Credit Lender fails to make available to the Swingline Lender the amount of such Revolving Credit Lender’s participation as provided in this Section 2.2(b2.2(b)(ii), the Swingline Lender shall be entitled to recover such amount on demand from such Revolving Credit Lender together with interest at a rate per annum equal to the Federal Funds Rate in effect from time to time during such period.
(iii) shall bear interest payable by the Borrowers at the rate then applicable to Base Rate Loans. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations in refund Swingline Loans pursuant to in accordance with the terms of this paragraph Section is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or Event of Default or reduction or termination including, without limitation, non-satisfaction of the Commitmentsconditions set forth in Article VI. Further, each Revolving Credit Lender agrees and acknowledges 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 the 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, mutatis mutandis, if prior to the 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 refunding of any participations in any outstanding Swingline Loan acquired Loans pursuant to this paragraphSection, and thereafter payments one of the events described in respect Section 10.1(h) or (i) 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 the Swingline Loan to be refunded in an amount equal to its Revolving Credit Commitment Percentage of the aggregate amount of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline LenderLoan. Any amounts received by the Swingline Each Revolving Credit Lender 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 will immediately transfer to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to in immediately available funds, the amount of its participation and upon receipt thereof the Swingline Lender or will deliver to such Revolving Credit Lender a certificate evidencing such participation dated the Administrative Agentdate of receipt of such funds and for such amount. Whenever, as at any time after the case may be, if and to the extent Swingline Lender has received from any Revolving Credit Lender such payment is required to be refunded to any Borrower for any reason. The purchase of participations Revolving Credit Lender’s participating interest in a Swingline Loan pursuant Loan, the Swingline Lender receives any payment on account thereof, the Swingline Lender will distribute to this paragraph shall not relieve the Borrowers of any default such Revolving Credit Lender its participating interest in such amount (appropriately adjusted, in the payment thereofcase 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. (i) The applicable Swingline Lender may 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 to the Administrative Agent not no later than 11:00 a.m. on any Business Day require 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 Lenders to acquire participations on such Business Day in all or a portion aggregate amount of the Swingline Loans outstanding. Such notice shall specify outstanding on the aggregate amount of Swingline Loans in which the Lenders will participate. Promptly upon receipt 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 immediately made available by the 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 Borrower shall pay to the applicable Swingline Lender on 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 Borrower irrevocably authorizes the Administrative Agent to charge any account maintained by the Borrower with the applicable Swingline Lender (up to the amount available therein) in order to immediately pay such Swingline Lender 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. If any portion of any such amount paid to the applicable Swingline Lender shall be recovered by or on behalf of the Borrower from 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 Applicable Percentages.
(iii) If for any reason any Swingline Loan cannot be refinanced with a Revolving Loan pursuant to Section 2.13(b)(i), each Lender shall, on the date such Revolving Loan was to have been made pursuant to the notice referred to in Section 2.13(b)(i), purchase for cash an undivided participating interest in the then outstanding Swingline Loans by paying to the applicable Swingline Lender an amount (the “Swingline Participation Amount”) equal to such Applicable Percentage of the aggregate principal amount of such Swingline Lender’s Swingline Loans then outstanding. Each Lender will give notice thereof immediately transfer to each the applicable Swingline Lender, specifying in such notice immediately available funds, the amount of its Swingline Participation Amount. Whenever, at any time after the applicable Swingline Lender has received from any Lender such Lender’s Pro Rata Share of Swingline Participation Amount, 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 receives any payment on account of the Swingline LenderLoans, such Swingline Lender will distribute to such Lender its Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Xxxxxx’s participating interest was outstanding and funded 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 Pro Rata Share of such Swingline Loan or Swingline Loans. Amounts funded by obligation to make the Lenders Revolving Loans referred to in Section 2.13(b)(i) and to purchase participating interests pursuant to this Section 2.2(b2.13(b)(iii) shall bear interest payable by the Borrowers at the rate then applicable to Base Rate Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is be absolute and unconditional and shall not be affected by any circumstance 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, including (B) the occurrence and or continuance of a Default or an Event of Default or reduction or termination the failure to satisfy any of the Commitmentsother conditions specified in Article IX, and that each such payment shall be made without (C) any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, adverse change in the same manner as provided in Section 2.4(bcondition (financial or otherwise) and Section 3.4 with respect to Revolving Loans made by such Lender (and Section 2.4(b) and Section 3.4 shall apply, mutatis mutandis, to the payment obligations of the Lenders)Borrower, 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 (D) any breach of this Agreement or any participations in any Swingline other Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received Document by the Swingline Borrower, any other Loan Party or any other Lender from the relevant Borrower or (E) any other circumstance, happening or other party on behalf event whatsoever, whether or not similar to any 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, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as the case may be, if and to the extent such payment is required to be refunded to any Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereofforegoing.
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 may 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 11:00 a.m. 1:00 p.m. on any Business Day require the Lenders day specified in such notice. The proceeds of such Revolving Credit Loans shall be immediately made available by the Administrative Agent to acquire participations on such Business Day in all or a portion 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 Borrower shall pay to the Swingline Lender on demand, and in any event on the Maturity Date, in immediately available funds the amount of such Swingline Loans outstandingto the extent amounts received from the Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. Such If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the 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 Commitment Percentages.
(iii) If for any reason any Swingline Loan cannot be refinanced with a Revolving Credit Loan pursuant to Section 2.2(b)(i), each Lender shall, on the date such Revolving Credit Loan was to have been made pursuant to the notice shall specify referred to in Section 2.2(b)(i), purchase for cash an undivided participating interest in the then outstanding Swingline Loans by paying to the Swingline Lender an amount (the “Swingline Participation Amount”) equal to such Xxxxxx’s Commitment Percentage of the aggregate principal amount of Swingline Loans then outstanding. Each Lender will immediately transfer to the Swingline Lender, in which the Lenders will participate. Promptly upon receipt of such noticeimmediately available funds, the Administrative Agent will give notice thereof to each Lenderamount of its Swingline Participation Amount. Whenever, specifying in such notice at any time after the Swingline Lender has received from any Lender such Lender’s Pro Rata Share Swingline Participation Amount, the Swingline Lender receives any payment on account of the Swingline Loans, the Swingline Lender will distribute to such Lender its Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Xxxxxx’s participating interest was outstanding and funded and, in the case of principal and interest payments, to reflect such Lender’s pro rata portion of such Swingline Loan or Swingline Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, 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’s Pro Rata Share of such Swingline Loan or Swingline Loans. Amounts funded by the Lenders Lender pursuant to the foregoing provisions of this Section 2.2(b) shall bear interest payable by the Borrowers at time specified in Section 2.2(b)(i) or 2.2(b)(iii), as applicable, the rate then applicable to Base Rate Loans. Each Swingline Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or Event of Default or reduction or termination of the 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 the same manner as provided in Section 2.4(b) and Section 3.4 with respect entitled to Revolving Loans made by recover from such Lender (and Section 2.4(b) and Section 3.4 shall applyacting through the Administrative Agent), mutatis mutandison demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment obligations of the Lenders), and the Administrative Agent shall promptly pay is immediately available to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Administrative Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made at a rate per annum equal to the Administrative Agent and not to the Swingline Lender. Any amounts received applicable Federal Funds Rate, plus any administrative, processing or similar fees customarily charged by the Swingline Lender from in connection with the relevant Borrower 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 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, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative AgentParticipation Amount, as the case may be, if and . A certificate of the Swingline Lender submitted to the extent such payment is required to be refunded to any Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereof.any
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 may 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 11:00 a.m. 1:00 p.m. on any Business Day require the Lenders day specified in such notice. The proceeds of such Revolving Credit Loans shall be immediately made available by the Administrative Agent to acquire participations on such Business Day in all or a portion 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 Borrower shall pay to the Swingline Lender on demand, and in any event on the Maturity Date, in immediately available funds the amount of such Swingline Loans outstandingto the extent amounts received from the Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. Such If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the 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 Commitment Percentages.
(iii) If for any reason any Swingline Loan cannot be refinanced with a Revolving Credit Loan pursuant to Section 2.2(b)(i), each Lender shall, on the date such Revolving Credit Loan was to have been made pursuant to the notice shall specify referred to in Section 2.2(b)(i), purchase for cash an undivided participating interest in the then outstanding Swingline Loans by paying to the Swingline Lender an amount (the “Swingline Participation Amount”) equal to such Xxxxxx’s Commitment Percentage of the aggregate principal amount of Swingline Loans then outstanding. Each Lender will immediately transfer to the Swingline Lender, in which the Lenders will participate. Promptly upon receipt of such noticeimmediately available funds, the Administrative Agent will give notice thereof to each Lenderamount of its Swingline Participation Amount. Whenever, specifying in such notice at any time after the Swingline Lender has received from any Lender such Lender’s Pro Rata Share Swingline Participation Amount, the Swingline Lender receives any payment on account of the Swingline Loans, the Swingline Lender will distribute to such Lender its Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Xxxxxx’s participating interest was outstanding and funded and, in the case of principal and interest payments, to reflect such Lender’s pro rata portion of such Swingline Loan or Swingline Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, 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’s Pro Rata Share of such Swingline Loan or Swingline Loans. Amounts funded by the Lenders Lender pursuant to the foregoing provisions of this Section 2.2(b) shall bear interest payable by the Borrowers at time specified in Section 2.2(b)(i) or 2.2(b)(iii), as applicable, the rate then applicable to Base Rate Loans. Each Swingline Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or Event of Default or reduction or termination of the 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 the same manner as provided in Section 2.4(b) and Section 3.4 with respect entitled to Revolving Loans made by recover from such Lender (and Section 2.4(b) and Section 3.4 shall applyacting through the Administrative Agent), mutatis mutandison demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment obligations of the Lenders), and the Administrative Agent shall promptly pay is immediately available to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Administrative Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made at a rate per annum equal to the Administrative Agent and not to the Swingline Lender. Any amounts received Overnight Rate, plus any administrative, processing or similar fees customarily charged by the Swingline Lender from in connection with the relevant Borrower 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 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, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative AgentParticipation Amount, as the case may be, if and to . A certificate of the extent such payment is required to be refunded Swingline Lender submitted to any Borrower for Lender (through the Administrative Agent) with respect to any reason. The purchase of participations in a Swingline Loan pursuant to amounts owing under this paragraph clause (v) shall not relieve the Borrowers of any default in the payment thereofbe conclusive absent manifest error.
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 may 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 11:00 a.m. 1:00 p.m. on any Business Day require the Lenders day specified in such notice. The proceeds of such Revolving Credit Loans shall be immediately made available by the Administrative Agent to acquire participations on such Business Day in all or a portion 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 Borrower shall pay to the Swingline Lender on demand, and in any event on the Maturity Date, in immediately available funds the amount of such Swingline Loans outstandingto the extent amounts received from the Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. Such If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the 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 Commitment Percentages.
(iii) If for any reason any Swingline Loan cannot be refinanced with a Revolving Credit Loan pursuant to Section 2.2(b)(i), each Lender shall, on the date such Revolving Credit Loan was to have been made pursuant to the notice shall specify referred to in Section 2.2(b)(i), purchase for cash an undivided participating interest in the then outstanding Swingline Loans by paying to the Swingline Lender an amount (the “Swingline Participation Amount”) equal to such Lender’s Commitment Percentage of the aggregate principal amount of Swingline Loans then outstanding. Each Lender will immediately transfer to the Swingline Lender, in which the Lenders will participate. Promptly upon receipt of such noticeimmediately available funds, the Administrative Agent will give notice thereof to each Lenderamount of its Swingline Participation Amount. Whenever, specifying in such notice at any time after the Swingline Lender has received from any Lender such Lender’s Pro Rata Share Swingline Participation Amount, the Swingline Lender receives any payment on account of the Swingline Loans, the Swingline Lender will distribute to such Lender its 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 funded and, in the case of principal and interest payments, to reflect such Lender’s pro rata portion of such Swingline Loan or Swingline Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, 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’s Pro Rata Share of such Swingline Loan or Swingline Loans. Amounts funded by the Lenders Lender pursuant to the foregoing provisions of this Section 2.2(b) shall bear interest payable by the Borrowers at time specified in Section 2.2(b)(i) or 2.2(b)(iii), as applicable, the rate then applicable to Base Rate Loans. Each Swingline Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or Event of Default or reduction or termination of the 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 the same manner as provided in Section 2.4(b) and Section 3.4 with respect entitled to Revolving Loans made by recover from such Lender (and Section 2.4(b) and Section 3.4 shall applyacting through the Administrative Agent), mutatis mutandison demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment obligations of the Lenders), and the Administrative Agent shall promptly pay is immediately available to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Administrative Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made at a rate per annum equal to the Administrative Agent and not to the Swingline Lender. Any amounts received applicable Federal Funds Rate, plus any administrative, processing or similar fees customarily charged by the Swingline Lender from in connection with the relevant Borrower 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 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, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative AgentParticipation Amount, as the case may be, if and to . A certificate of the extent such payment is required to be refunded Swingline Lender submitted to any Borrower for Lender (through the Administrative Agent) with respect to any reason. The purchase of participations in a Swingline Loan pursuant to amounts owing under this paragraph clause (v) shall not relieve the Borrowers of any default in the payment thereofbe conclusive absent manifest error.
Appears in 1 contract
Refunding. (i) The applicable Swingline Lender may 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 to the Administrative Agent not no later than 11:00 a.m. on any Business Day require 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 Lenders to acquire participations on such Business Day in all or a portion aggregate amount of the Swingline Loans outstanding. Such notice shall specify outstanding on the aggregate amount of Swingline Loans in which the Lenders will participate. Promptly upon receipt 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 immediately made available by the 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 Borrower shall pay to the applicable Swingline Lender on 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 Borrower irrevocably authorizes the Administrative Agent to charge any account maintained by the Borrower with the applicable Swingline Lender (up to the amount available therein) in order to immediately pay such Swingline Lender 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. If any portion of any such amount paid to the applicable Swingline Lender shall be recovered by or on behalf of the Borrower from 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 Applicable Percentages.
(iii) If for any reason any Swingline Loan cannot be refinanced with a Revolving Loan pursuant to Section 2.13(b)(i), each Lender shall, on the date such Revolving Loan was to have been made pursuant to the notice referred to in Section 2.13(b)(i), purchase for cash an undivided participating interest in the then outstanding Swingline Loans by paying to the applicable Swingline Lender an amount (the “Swingline Participation Amount”) equal to such Applicable Percentage of the aggregate principal amount of such Swingline Lender’s Swingline Loans then outstanding. Each Lender will give notice thereof immediately transfer to each the applicable Swingline Lender, specifying in such notice immediately available funds, the amount of its Swingline Participation Amount. Whenever, at any time after the applicable Swingline Lender has received from any Lender such Lender’s Pro Rata Share of Swingline Participation Amount, 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 receives any payment on account of the Swingline LenderLoans, such Swingline Lender will distribute to such Lender its Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s Pro Rata Share participating interest was outstanding and funded 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 Loan or Swingline Loans. Amounts funded Loans then due); provided that in the event that such payment received by the Lenders 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 this Section 2.2(b2.13(b)(iii) shall bear interest payable by the Borrowers at the rate then applicable to Base Rate Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is be absolute and unconditional and shall not be affected by any circumstance 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, including (B) the occurrence and or continuance of a Default or an Event of Default or reduction or termination the failure to satisfy any of the Commitmentsother conditions specified in ARTICLE IX, and that each such payment shall be made without (C) any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, adverse change in the same manner as provided in Section 2.4(bcondition (financial or otherwise) and Section 3.4 with respect to Revolving Loans made by such Lender (and Section 2.4(b) and Section 3.4 shall apply, mutatis mutandis, to the payment obligations of the Lenders)Borrower, 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 (D) any breach of this Agreement or any participations in any Swingline other Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received Document by the Swingline Borrower, any other Loan Party or any other Lender from the relevant Borrower or (E) any other circumstance, happening or other party on behalf event whatsoever, whether or not similar to any 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, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as the case may be, if and to the extent such payment is required to be refunded to any Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereofforegoing.
Appears in 1 contract
Refunding. The (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 Lenders on the books and
(ii) Borrower shall pay to the Swingline Lender may by written notice given 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, Borrower hereby authorizes the Administrative Agent not later than 11:00 a.m. on to charge any Business Day require account maintained by Borrower with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of such Swingline Loans to the extent amounts received from the Lenders are not sufficient to acquire participations on such Business Day repay in all full the outstanding Swingline Loans requested or a required to be refunded. If any portion of any such amount paid to the Swingline Loans outstanding. Such notice Lender shall specify be recovered by or on behalf of Borrower from the aggregate Swingline Lender in bankruptcy or otherwise, the loss of the amount of Swingline Loans in which so recovered shall be ratably shared among all the Lenders will participate. Promptly upon receipt in accordance with their respective Commitment Percentages (unless the amounts so recovered by or on behalf of such notice, Borrower pertain to a Swingline Loan extended after the occurrence and during the continuance of an Event of Default of which the Administrative Agent will give has received notice thereof in the manner required pursuant to each Lender, specifying in Section 11.3 and which such notice such Lender’s Pro Rata Share Event 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, such Lender’s Pro Rata Share of such Swingline Loan or Swingline Loans. Amounts funded Default has not been waived by the Required Lenders pursuant to this Section 2.2(bor the Lenders, as applicable).
(iii) shall bear interest payable by the Borrowers at the rate then applicable to Base Rate Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in refund Swingline Loans pursuant to in accordance with the terms of this paragraph Section is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or Event of Default or reduction or termination including, without limitation, non-satisfaction of the 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, conditions set forth in the 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, mutatis mutandis, to the 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 participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender 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, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as the case may be, if and to the extent such payment is required to be refunded to any Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrowers of any default in the payment thereofArticle VI.
Appears in 1 contract
Samples: Credit Agreement (Kforce 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 may to act on their behalf), by written notice given to the Administrative Agent not no later than 11:00 a.m. on any Business Day require 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 Lenders to acquire participations on such Business Day in all or a portion aggregate amount of the Swingline Loans outstandingoutstanding on the date of such notice, to repay the Swingline Lender. Such 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 immediately made available by the 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 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 Borrowers irrevocably authorize the Administrative Agent to charge any account maintained by the Borrowers with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender 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. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the 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 Revolving A Commitment Percentages.
(iii) If for any reason any Swingline Loan cannot be refinanced with a Revolving A Loan pursuant to Section 2.02(b)(i), each Revolving A Lender shall, on the date such Revolving A Loan was to have been made pursuant to the notice shall specify referred to in Section 2.02(b)(i), purchase for cash an undivided participating interest in the then outstanding Swingline Loans by paying to the Swingline Lender an amount (the “Swingline Participation Amount”) equal to such Revolving A Lender’s Revolving A Commitment Percentage of the aggregate principal amount of Swingline Loans then outstanding. Each Revolving A Lender will immediately transfer to the Swingline Lender, in which the Lenders will participate. Promptly upon receipt of such noticeimmediately available funds, the Administrative Agent will give notice thereof to each Lenderamount of its Swingline Participation Amount. Whenever, specifying in at any time after the Swingline Lender has received from any Revolving A Lender such notice such Revolving A Lender’s Pro Rata Share of such Swingline Loan or Participation Amount, the Swingline Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the receives any payment on account of the Swingline LenderLoans, the Swingline Lender will distribute to such Revolving A Lender its Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s Pro Rata Share participating interest was outstanding and funded 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 Loan or Swingline Loans. Amounts funded Loans then due); provided that in the event that such payment received by the Lenders 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 this Section 2.2(b2.02(b)(ii) shall bear interest payable by the Borrowers at the rate then applicable to Base Rate Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is be absolute and unconditional and shall not be affected by any circumstance 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, including (B) the occurrence and or continuance of a Default or an Event of Default or reduction or termination the failure to satisfy any of the Commitmentsother conditions specified in Article VI, and that each such payment shall be made without (iii) any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, adverse change in the same manner as provided in Section 2.4(bcondition (financial or otherwise) and Section 3.4 with respect 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 Revolving Loans made by such Lender (and Section 2.4(b) and Section 3.4 shall apply, mutatis mutandis, to the payment obligations any of the Lenders), and 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 promptly pay 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 the amounts so received by it from the Lenders. The Administrative Agent shall notify the Administrative Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made at a rate per annum equal to the Administrative Agent and not to the Swingline Lender. Any amounts received applicable Federal Funds Rate, plus any administrative, processing or similar fees customarily charged by the Swingline Lender from in connection with the relevant Borrower 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 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, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative AgentParticipation Amount, as the case may be, if and to . A certificate of the extent such payment is required to be refunded Swingline Lender submitted to any Borrower for Revolving A Lender (through the Administrative Agent) with respect to any reason. The purchase of participations in a Swingline Loan pursuant to amount owing under this paragraph clause (v) shall not relieve the Borrowers of any default in the payment thereofbe conclusive absent manifest error.
Appears in 1 contract
Samples: Loan Agreement (Omega Protein Corp)
Refunding. 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 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 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 So long as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Pro Rata Share of such Swingline Loan or Swingline Loans. Amounts funded by the Lenders pursuant to this Section 2.2(b) shall bear interest payable by the Borrowers at the rate then applicable to Base Rate Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a no Material Default or Event of Default shall be in existence and Zenith simultaneously requests a refunding or reduction or termination refinancing under the U.S. Participation Agreement, and subject to satisfaction of the Commitments, terms and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under conditions set forth in this paragraph by wire transfer of immediately available funds, in the same manner as provided Article XI and 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, mutatis mutandis, to the payment obligations 2.12 of the Lenders)Indenture, the Lessee shall have the right to request the Owner Participant to effect, and the Administrative Agent 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 promptly pay have the right to so request a Refunding and a "Refunding" under and as defined in the Swingline Lender U.S. Participation Agreement only twice in the amounts so received by it from aggregate; provided further, that a substantially simultaneous Refunding hereunder with a "Refunding" under the Lenders. The Administrative Agent U.S. Participation Agreement shall notify be deemed as one refunding request for purposes of such limit and; provided further, that the Administrative Borrower of any participations Owner Participant shall in any Swingline Loan acquired pursuant event have the right to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made consent to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender 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 Refunding, which consent the Administrative Agent Owner Participant may withhold in the Owner Participant's sole good faith discretion; except that the Owner Participant shall be promptly remitted by the Administrative Agent to the Lenders that shall not have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as the case may be, consent right if and to the extent Hunton & Xxxxxxxx, or such payment is required other counsel selected by the Owner Participant and reasonably acceptable to be refunded the Lessee, delivers an opinion to any Borrower for any reason. The purchase the Owner Participant (which opinion the Owner Participant agrees to timely request at the time of participations such Refunding) that, as a result of a change in a Swingline Loan pursuant to this paragraph 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 relieve adversely affect the Borrowers eligibility of any default in the payment thereof.Lease for initial and continued compliance with Section 1.467-3(c)(2)(i) of the Regulations. In connection with a Refunding:
Appears in 1 contract
Refunding. (A) 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 given to the Administrative Agent not given no later than 11:00 a.m. on any Business Day require 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 Lenders to acquire participations on such Business Day in all or a portion aggregate amount of the Swingline Loans outstandingoutstanding on the date of such notice, to repay the Swingline Lender. Such 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 immediately made available by the 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.
(B) 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 Borrower irrevocably authorizes the Administrative Agent to charge any account maintained by the Borrower with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender 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. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all the Lenders.
(C) If for any reason any Swingline Loan cannot be refinanced with a Revolving Loan pursuant to Section 2.1(b)(ii)(A), each Lender shall, on the date such Revolving Loan was to have been made pursuant to the notice shall specify referred to in Section 2.1(b)(ii)(A) purchase for cash an undivided participating interest in the then outstanding Swingline Loans by paying to the Swingline Lender an amount (the “Swingline Participation Amount”) equal to such Lender’s Ratable Share of the aggregate principal amount of Swingline Loans then outstanding. Each Lender will immediately transfer to the Swingline Lender, in which the Lenders will participate. Promptly upon receipt of such noticeimmediately available funds, the Administrative Agent will give notice thereof to each Lenderamount of its Swingline Participation Amount. Whenever, specifying in such notice at any time after the Swingline Lender has received from any Lender such Lender’s Pro Rata Share of such Swingline Loan or Participation Amount, the Swingline Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the receives any payment on account of the Swingline LenderLoans, the Swingline Lender will distribute to such Lender its Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s Pro Rata participating interest was outstanding and funded 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 Loan or Swingline Loans. Amounts funded Loans then due); provided that in the event that such payment received by the Lenders 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 this Section 2.2(b2.1(b)(ii)(C) shall bear interest payable by the Borrowers at the rate then applicable to Base Rate Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is be absolute and unconditional and shall not be affected by any circumstance 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, including (B) the occurrence and or continuance of a Default or an Event of Default Default, (C) any adverse change in the condition (financial or reduction or termination otherwise) of the CommitmentsBorrower, and that each such payment shall (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 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 the same manner as provided in Section 2.4(b) and Section 3.4 with respect to Revolving Loans made paid by such Lender (and Section 2.4(b) and Section 3.4 shall apply, mutatis mutandis, pursuant to the payment obligations foregoing provisions of this Section 2.1(b) by the Lenderstime specified herein, the Swingline Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), and on demand, such amount with interest thereon for the Administrative Agent shall promptly pay period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall notify the Administrative Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made at a rate per annum equal to the Administrative Agent and not to the Swingline Lender. Any amounts received applicable Federal Funds Rate, plus any administrative, processing or similar fees customarily charged by the Swingline Lender from in connection with the relevant Borrower 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 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, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative AgentParticipation Amount, as the case may be, if and to . A certificate of the extent such payment is required to be refunded Swingline Lender submitted to any Borrower for Lender (through the Administrative Agent) with respect to any reason. The purchase of participations in a Swingline Loan pursuant to amounts owing under this paragraph clause (E) shall not relieve the Borrowers of any default in the payment thereofbe conclusive absent manifest error.
Appears in 1 contract
Samples: Credit Agreement (Allied World Assurance Co Holdings, AG)
