Synthetic Deposit Account. (a) On or prior to the Closing Date, the Administrative Agent shall establish the Synthetic Deposit Account. The Administrative Agent shall maintain records enabling it to determine at any time the amount of the interest of each DIP L/C Lender in the Synthetic Deposit Account (the interest of each DIP L/C Lender in the Synthetic Deposit Account, as evidenced by such records, being referred to as such Lender’s “Synthetic Deposit Sub-Account”). The Administrative Agent shall establish such additional Synthetic Deposit Sub-Accounts for assignee Lenders as shall be required pursuant to Section 12.11. No Person (other than the Administrative Agent or any of its sub-agents) shall have the right to make any withdrawals from the Synthetic Deposit Account or exercise any other right or power with respect thereto, except as expressly provided herein. Without limiting the generality of the foregoing, each party hereto acknowledges and agrees that no amount on deposit at any time in the Synthetic Deposit Account (i) shall be the property of any Secured Party (other than the Administrative Agent for the benefit of the DIP Letter of Credit Issuer) and (ii) shall constitute Collateral under the Loan Documents other than in favor of the DIP Letter of Credit Issuer in respect of DIP Letter of Credit Participation Obligations. In addition, each DIP L/C Lender hereby grants to the Administrative Agent for the benefit of the DIP Letter of Credit Issuer a security interest in its rights and interests in such DIP L/C Lender’s Synthetic Deposit to secure the obligations of such DIP L/C Lender hereunder. Each DIP L/C Lender agrees that its right, title and interest with respect to the Synthetic Deposit Account shall be limited to the right to require amounts in its Synthetic Deposit Sub-Account to be used as expressly set forth herein and that it will have no right to require the return of its Synthetic Deposit other than as expressly provided herein (each DIP L/C Lender hereby acknowledging that its Synthetic Deposit constitutes payment for its DIP Letter of Credit Participation Obligations and that the DIP Letter of Credit Issuer will be issuing, amending, renewing and extending DIP Letters of Credit in reliance on the availability of such Lender’s Synthetic Deposit to discharge such Lender’s obligations in accordance with clause (c) of this Section 2.4 and Section 2.9.3). The funding of the Synthetic Deposits and the agreements with respect thereto set forth in this Agreement constitute arrangements solely among the Administrative Agent, the DIP Letter of Credit Issuer and the DIP L/C Lenders with respect to the funding and reimbursement obligations of the DIP L/C Lenders under this Agreement, and do not constitute loans, extensions of credit or other financial accommodations to any Obligor. (b) On the Closing Date, each DIP L/C Lender shall deposit in the Synthetic Deposit Account an amount in Dollars equal to such Lender’s Synthetic Deposit Amount less an original issue discount of 3.00%; (each amount so deposited, such Lender’s “Synthetic Deposit”); provided, however, that an amount equal to the foregoing amount of original issue discount shall, immediately upon the occurrence of the Closing Date, be funded into the Synthetic Deposit Account from the NM Loans funded on the Closing Date into the Reserve Account and deemed to be a Synthetic Deposit of the DIP L/C Lenders who received such original issue discount for all purposes hereunder, and after the Closing Date treated the same as all other Synthetic Deposits of such DIP L/C Lenders. (c) Each DIP L/C Lender irrevocably and unconditionally agrees that its Synthetic Deposits in the Synthetic Deposit Account shall be withdrawn and distributed as follows: (i) In the event the Borrower does not reimburse the DIP Letter of Credit Issuer pursuant to Section 2.9.3, the Administrative Agent shall withdraw from the Synthetic Deposit Account the amount of such unreimbursed Disbursement (and debit the Synthetic Deposit Sub-Account of each DIP L/C Lender in the amount of such DIP L/C Lender’s Synthetic Deposit Percentage of such unreimbursed Disbursement) and make such amount available to the DIP Letter of Credit Issuer and the DIP Letter of Credit Available Amount shall be reduced by such amount. (ii) In the event the Borrower voluntarily decides to permanently reduce the DIP Letter of Credit Available Amount, the Administrative Agent will, subject to payment of the Exit Fee, withdraw from the Synthetic Deposit Account an amount equal to such reduction, and pay to each DIP L/C Lender an amount equal to the product of (A) such Lender’s Synthetic Deposit Percentage multiplied by (B) the aggregate amount of such reduction. In no event shall the DIP Letter of Credit Available Amount be reduced to an amount that is less than the aggregate amount of the DIP Letter of Credit Outstandings. (iii) Concurrently with the effectiveness of any assignment by any DIP L/C Lender of all or any portion of its Synthetic Deposit, the corresponding portion of the assignor’s Synthetic Deposit Sub-Account shall be transferred from the assignor’s Synthetic Deposit Sub-Account to the assignee’s Synthetic Deposit Sub-Account in accordance with Section 12.11 and, if required by Section 12.11, the Administrative Agent shall close such assignor’s Synthetic Deposit Sub-Account. (iv) Upon the occurrence of the Maturity Date (other than the return of the portion of the Synthetic Deposit of each DIP L/C Lender on deposit in the Synthetic Deposit Account), in the event that all DIP Letters of Credit have been returned, replaced, cancelled or Cash Collateralized (other than with Synthetic Deposits), all amounts remaining in the Synthetic Deposit Account shall be returned to the DIP L/C Lenders based on such DIP L/C Lender’s Synthetic Deposit Percentage. (d) On each day on which Participation Fees are required to be paid with respect to all or any portion of the Synthetic Deposits pursuant to clause (c) of Section 3.2.1, the Administrative Agent shall pay to each DIP L/C Lender an amount (the “Synthetic Deposit Return”) equal to (i) the Base Return for the relevant Investment Period less an amount equal to 0.10% per annum on such Synthetic Deposits multiplied by (ii) such DIP L/C Lender’s Synthetic Deposit Percentage. Any amounts earned and received with respect to Synthetic Deposits during any applicable Investment Period in excess of the Base Return shall be for the account of the Administrative Agent. No Person other than the Administrative Agent shall have any obligation under or in respect of this clause. (e) Notwithstanding anything to the contrary in this Agreement, the Borrower shall not be liable for any losses due to (i) the misappropriation of any Base Return or Synthetic Deposit or (ii) the failure of the Administrative Agent to pay the Synthetic Deposit Return to any DIP L/C Lender (it being understood and agreed for greater certainty that this clause shall not limit any obligation of the Borrower hereunder to pay any Participation Fee). Neither the Administrative Agent, the DIP Letter of Credit Issuer nor any other Person guarantees any rate of return on the investment of any Synthetic Deposit held in the Synthetic Deposit Account. (f) Notwithstanding any other provision of this Agreement, no DIP Letter of Credit shall be issued nor any Stated Amount of any DIP Letter of Credit increased, if, after giving effect thereto, the DIP Letter of Credit Outstandings would exceed the Synthetic Account Balance. (g) If the DIP Letter of Credit Issuer is enjoined from taking any action referred to in clause (d) of this Section 2.4, or if the DIP Letter of Credit Issuer reasonably determines that, by operation of law, it may reasonably be precluded from taking any such action, or if any Obligor or DIP L/C Lender challenges in any legal proceeding any of the acknowledgements, agreements or characterizations set forth in clause (a) of this Section 2.4, then, in any such case (and so long as such event or condition shall be continuing), and notwithstanding anything contained herein to the contrary, the DIP Letter of Credit Issuer shall not be required to issue, renew or extend any DIP Letter of Credit. (h) In the event any payment of a DIP Letter of Credit Reimbursement Obligation shall be required to be refunded by the DIP Letter of Credit Issuer to the Borrower after the return of the Synthetic Deposits to the DIP L/C Lenders as permitted hereunder, each DIP L/C Lender agrees to acquire and fund a participation in such refunded amount equal to the lesser of its Synthetic Deposit Percentage thereof and the amount of its Synthetic Deposit that shall have been so returned.
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Samples: Debtor in Possession Credit Agreement (Champion Enterprises Inc)
Synthetic Deposit Account. (a) On or prior after to the Closing Second Amendment Effective Date, the Administrative Agent shall establish the Synthetic Deposit Account. The Administrative Agent shall maintain records enabling it to determine at any time the amount of the interest of each DIP L/C Synthetic Lender in the Synthetic Deposit Account (the interest of each DIP L/C Synthetic Lender in the Synthetic Deposit Account, as evidenced by such records, being referred to as such Lender’s “Synthetic Deposit Sub-Account”). The Administrative Agent shall establish such additional Synthetic Deposit Sub-Accounts for assignee Lenders as shall be required pursuant to Section 12.1111.5. No Person (other than the Administrative Agent or any of its sub-agents) shall have the right to make any withdrawals from the Synthetic Deposit Account or exercise any other right or power with respect thereto, except as expressly provided herein. Without limiting the generality of the foregoing, each party hereto acknowledges and agrees that no amount on deposit at any time in the Synthetic Deposit Account (i) shall be the property of any Secured Party (other than the Administrative Agent for the benefit of the DIP Letter of Credit IssuerSynthetic Issuing Bank) and (ii) shall constitute Collateral “Collateral” under the Loan Documents other than in favor of the DIP Letter of Credit Issuer Synthetic Issuing Bank in respect of DIP Synthetic Letter of Credit Participation Obligations. In addition, each DIP L/C Lender hereby grants to the Administrative Agent for the benefit of the DIP Letter of Credit Issuer a security interest in its rights and interests in such DIP L/C Lender’s Each Synthetic Deposit to secure the obligations of such DIP L/C Lender hereunder. Each DIP L/C Lender agrees that its right, title and interest with respect to the Synthetic Deposit Account shall be limited to the right to require amounts in its Synthetic Deposit Sub-Account to be used as expressly set forth herein and that it will have no right to require the return of its Synthetic Deposit other than as expressly provided herein (each DIP L/C Synthetic Lender hereby acknowledging that its Synthetic Deposit constitutes payment for its DIP Synthetic Letter of Credit Participation Obligations and that the DIP Letter of Credit Issuer Synthetic Issuing Bank will be issuing, amending, renewing and extending DIP Synthetic Letters of Credit in reliance on the availability of such Lender’s Synthetic Deposit to discharge such Lender’s obligations in accordance with clause (c) of this Section 2.4 2.16 and Section 2.9.32.17(c)). The funding of the Synthetic Deposits and the agreements with respect thereto set forth in this Agreement constitute arrangements solely among the Administrative Agent, the DIP Letter of Credit Issuer Synthetic Issuing Bank and the DIP L/C Synthetic Lenders with respect to the funding and reimbursement obligations of the DIP L/C Synthetic Lenders under this Agreement, and do not constitute loans, extensions of credit or other financial accommodations to any ObligorLoan Party.
(b) On The following amounts will be deposited in the Closing Synthetic Deposit Account at the following times:
(i) At any time after the Synthetic Facility Availability Date, upon the written request (the “Synthetic Request”) of EnergySolutions substantially in the form of Exhibit D hereto or as reasonably acceptable to the Administrative Agent, each DIP L/C Synthetic Lender shall deposit in the Synthetic Deposit Account (via the Administrative Agent) an amount in Dollars equal to such Lender’s Synthetic Deposit Amount less an original issue discount of 3.00%; (each amount so depositedAmount. Thereafter, the Synthetic Deposits shall be available, on the terms and subject to the conditions set forth herein, for application pursuant to Section 2.16(d)(i), to reimburse such Lender’s “Synthetic Deposit Percentage of Disbursements that are not reimbursed by EnergySolutions.
(ii) On any date prior to the Synthetic Letter of Credit Maturity Date on which the Administrative Agent or the Synthetic Issuing Bank receives any reimbursement payment from EnergySolutions in respect of a Disbursement, with respect to which amounts were withdrawn from the Synthetic Deposit Account to reimburse or pay such Disbursement, the Administrative Agent shall deposit in the Synthetic Deposit Account, and credit to the Synthetic Deposit Sub-Accounts of the Synthetic Lenders, the portion of such reimbursement or other payment to be deposited therein, in accordance with Section 2.17(d).
(iii) Concurrently with the effectiveness of any assignment by any Lender of all or any portion of its Synthetic Deposit”); provided, however, that an amount equal to the foregoing amount of original issue discount shall, immediately upon the occurrence of the Closing Date, be funded Administrative Agent shall transfer into the Synthetic Deposit Sub-Account from of the NM Loans funded assignee the corresponding portion of the amount on deposit in the Closing Date into the Reserve Account and deemed to be a assignor’s Synthetic Deposit of the DIP L/C Lenders who received such original issue discount for all purposes hereunder, and after the Closing Date treated the same as all other Synthetic Deposits of such DIP L/C LendersSub-Account in accordance with Section 11.5(c).
(c) Each DIP L/C Synthetic Lender irrevocably and unconditionally agrees that its Synthetic Deposits Deposit in the Synthetic Deposit Account shall be withdrawn and distributed as follows:
(i) In the event the Borrower EnergySolutions does not reimburse the DIP Synthetic Letter of Credit Issuer pursuant to Section 2.9.32.17(d), the Administrative Agent shall withdraw from the Synthetic Deposit Account the amount of such unreimbursed Disbursement (and debit the Synthetic Deposit Sub-Account of each DIP L/C Synthetic Lender in the amount of such DIP L/C Synthetic Lender’s Synthetic Deposit Percentage of such unreimbursed Disbursement) and make such amount available to the DIP Letter of Credit Issuer Synthetic Issuing Bank and the DIP Letter of Credit Synthetic Facility Available Amount shall be reduced by such amount.
(ii) In the event the Borrower EnergySolutions voluntarily decides to permanently reduce the DIP Letter of Credit Synthetic Facility Available AmountAmount pursuant to Section 2.7(d), the Administrative Agent will, subject to payment of the Exit Fee, will withdraw from the Synthetic Deposit Account an amount equal to such reduction, and pay to each DIP L/C Synthetic Lender an amount equal to the product of (A) such Lender’s Synthetic Deposit Percentage multiplied by (B) the aggregate amount of such reduction. In no event shall the DIP Letter of Credit Synthetic Facility Available Amount be reduced to an amount that is less than the aggregate amount of the DIP Synthetic Letter of Credit Outstandings.
(iii) Concurrently with the effectiveness of any assignment by any DIP L/C Synthetic Lender of all or any portion of its Synthetic Deposit, the corresponding portion of the assignor’s Synthetic Deposit Sub-Account shall be transferred from the assignor’s Synthetic Deposit Sub-Account to the assignee’s Synthetic Deposit Sub-Account in accordance with Section 12.11 11.5 and, if required by Section 12.1111.5, the Administrative Agent shall close such assignor’s Synthetic Deposit Sub-Account.
(iv) Upon the occurrence of the Maturity Date (other than the return of the portion reduction of the Synthetic Deposit of each DIP L/C Lender on deposit in Facility Available Amount and the Synthetic Deposit Account), in the event that all DIP Letters Letter of Credit have been returned, replaced, cancelled or Cash Collateralized (other than with Synthetic Deposits)Outstandings to zero, all amounts remaining in the Synthetic Deposit Account shall be returned to the DIP L/C Synthetic Lenders based on such DIP L/C Synthetic Lender’s Synthetic Deposit Percentage.
(d) On The Administrative Agent shall invest, or cause to be invested, the Synthetic Deposit of each Synthetic Lender so as to earn for the account of such Synthetic Lender a return thereon (the “Synthetic Deposit Return”) for each day at a rate per annum equal to (i) the one month LIBOR rate as determined by the Administrative Agent on such day (or if such day was not a Business Day, the first Business Day immediately preceding such day) based on rates for deposits in dollars (as set forth by Bloomberg L.P.-page BTMM or any other comparable publicly available service as may be selected by the Administrative Agent) (the “Benchmark LIBO Rate”) minus (ii) 0.15% per annum (based on a 365/366 day year). The Benchmark LIBO Rate will be reset monthly. The Synthetic Deposit Return accrued through and including the last day of each Interest Period shall be payable by the Administrative Agent to each Synthetic Lender on each day on which Participation Fees are required to be paid with respect to all or any portion of the Synthetic Deposits pursuant to clause (cSection 2.5(d)(ii) of Section 3.2.1, and the Administrative Agent shall pay to each DIP L/C Synthetic Lender an amount (the “Synthetic Deposit Return”) equal to (i) the Base Return for the relevant Investment Period less an amount equal to 0.10% per annum on such Synthetic Deposits multiplied by (ii) such DIP L/C Lender’s Synthetic Deposit PercentageDeposits. Any amounts earned and received with respect to Synthetic Deposits during any applicable Investment Period in excess of the Base Synthetic Deposit Return shall be for the account of the Administrative Agent. No Person other than the Administrative Agent shall have any obligation under or in respect of this clause.
(e) Notwithstanding anything to the contrary in this Agreement, the Borrower EnergySolutions shall not be liable for any losses due to (i) the misappropriation of any Base Synthetic Deposit Return or Synthetic Deposit or (ii) the failure of the Administrative Agent to pay the Synthetic Deposit Return to any DIP L/C Synthetic Lender (it being understood and agreed for greater certainty that this clause shall not limit any obligation of the Borrower EnergySolutions hereunder to pay any Participation Fee). Neither the Administrative Agent, the DIP Letter of Credit Issuer Synthetic Issuing Bank, any Loan Party nor any other Person guarantees any rate of return on the investment of any Synthetic Deposit held in the Synthetic Deposit Account.
(f) Notwithstanding any other provision of this Agreement, no DIP Letter of Credit shall be issued nor any Stated Amount of any DIP Letter of Credit increased, if, after giving effect thereto, the DIP Letter of Credit Outstandings would exceed If the Synthetic Account Balance.
(g) If the DIP Letter of Credit Issuer Issuing Bank is enjoined from taking any action referred to in clause (dc) of this Section 2.42.16, or if the DIP Letter of Credit Issuer Synthetic Issuing Bank reasonably determines that, by operation of law, it may reasonably be precluded from taking any such action, or if any Obligor Loan Party or DIP L/C Synthetic Lender challenges in any legal proceeding any of the acknowledgements, agreements or characterizations set forth in any of clause (a) of this Section 2.42.16, then, in any such case (and so long as such event or condition shall be continuing), and notwithstanding anything contained herein to the contrary, the DIP Letter of Credit Issuer Synthetic Issuing Bank shall not be required to issue, renew or extend any DIP Synthetic Letter of Credit.
(hg) In the event any payment of a DIP Letter of Credit Synthetic Reimbursement Obligation shall be required to be refunded by the DIP Letter of Credit Issuer Synthetic Issuing Bank to the Borrower EnergySolutions after the return of the Synthetic Deposits to the DIP L/C Synthetic Lenders as permitted hereunder, each DIP L/C Synthetic Lender agrees to acquire and fund a participation in such refunded amount equal to the lesser of its Synthetic Deposit Percentage thereof hereof and the amount of its Synthetic Deposit that shall have been so returned.
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Synthetic Deposit Account. (a) On or prior to the Closing Date, the Administrative Agent shall establish the Synthetic Deposit Account. The Administrative Agent shall maintain records enabling it to determine at any time the amount of the interest of each DIP L/C Synthetic Lender in the Synthetic Deposit Account (the interest of each DIP L/C Synthetic Lender in the Synthetic Deposit Account, as evidenced by such records, being referred to as such Lender’s “Synthetic Deposit Sub-Account”). The Administrative Agent shall establish such additional Synthetic Deposit Sub-Accounts for assignee Lenders as shall be required pursuant to Section 12.11. No Person (other than the Administrative Agent or any of its sub-agents) shall have the right to make any withdrawals from the Synthetic Deposit Account or exercise any other right or power with respect thereto, except as expressly provided herein. Without limiting the generality of the foregoing, each party hereto acknowledges and agrees that no amount on deposit at any time in the Synthetic Deposit Account (i) shall be the property of any Secured Party (other than the Administrative Agent for the benefit of the DIP Letter of Credit Synthetic Issuer) and (ii) shall constitute Collateral “collateral” under the Loan Documents other than in favor of the DIP Letter of Credit Synthetic Issuer in respect of DIP Synthetic Letter of Credit Participation Obligations. In addition, each DIP L/C Synthetic Lender hereby grants to the Administrative Agent for the benefit of the DIP Letter of Credit Synthetic Issuer a security interest in its rights and interests in such DIP L/C Synthetic Lender’s Synthetic Deposit to secure the obligations of such DIP L/C Synthetic Lender hereunder. Each DIP L/C Synthetic Lender agrees that its right, title and interest with respect to the Synthetic Deposit Account shall be limited to the right to require amounts in its Synthetic Deposit Sub-Account to be used as expressly set forth herein and that it will have no right to require the return of its Synthetic Deposit other than as expressly provided herein (each DIP L/C Synthetic Lender hereby acknowledging that its Synthetic Deposit constitutes payment for its DIP Synthetic Letter of Credit Participation Obligations and that the DIP Letter of Credit Synthetic Issuer will be issuing, amending, renewing and extending DIP Synthetic Letters of Credit in reliance on the availability of such Lender’s Synthetic Deposit to discharge such Lender’s obligations in accordance with clause (c) of this Section 2.4 2.1.4 and Section 2.9.32.6.3). The funding of the Synthetic Deposits and the agreements with respect thereto set forth in this Agreement constitute arrangements solely among the Administrative Agent, the DIP Letter of Credit Synthetic Issuer and the DIP L/C Synthetic Lenders with respect to the funding and reimbursement obligations of the DIP L/C Synthetic Lenders under this Agreement, and do not constitute loans, extensions of credit or other financial accommodations to any Obligor.
(b) On the Closing Date, each DIP L/C Synthetic Lender shall deposit in the Synthetic Deposit Account an amount in Dollars equal to such Lender’s Synthetic Deposit Amount less an original issue discount of 3.00%; (each amount so deposited, such Lender’s “Synthetic Deposit”); provided, however, that an amount equal to the foregoing amount of original issue discount shall, immediately upon the occurrence of the Closing Date, be funded into the Synthetic Deposit Account from the NM Loans funded on the Closing Date into the Reserve Account and deemed to be a Synthetic Deposit of the DIP L/C Lenders who received such original issue discount for all purposes hereunder, and after the Closing Date treated the same as all other Synthetic Deposits of such DIP L/C Lenders.
(c) Each DIP L/C Synthetic Lender irrevocably and unconditionally agrees that its Synthetic Deposits Deposit in the Synthetic Deposit Account shall be withdrawn and distributed as follows:
(i) In the event the Borrower does not reimburse the DIP Synthetic Letter of Credit Issuer pursuant to Section 2.9.32.6.2, the Administrative Agent shall withdraw from the Synthetic Deposit Account the amount of such unreimbursed Disbursement (and debit the Synthetic Deposit Sub-Account of each DIP L/C Synthetic Lender in the amount of such DIP L/C Synthetic Lender’s Synthetic Deposit Percentage of such unreimbursed Disbursement) and make such amount available to the DIP Letter of Credit Synthetic Issuer and the DIP Letter of Credit Synthetic Facility Available Amount shall be reduced by such amount.
(ii) In the event the Borrower voluntarily decides to permanently reduce the DIP Letter of Credit Synthetic Facility Available Amount, the Administrative Agent will, subject to payment of the Exit Fee, will withdraw from the Synthetic Deposit Account an amount equal to such reduction, and pay to each DIP L/C Synthetic Lender an amount equal to the product of (A) such Lender’s Synthetic Deposit Percentage multiplied by (B) the aggregate amount of such reduction. In no event shall the DIP Letter of Credit Synthetic Facility Available Amount be reduced to an amount that is less than the aggregate amount of the DIP Synthetic Letter of Credit Outstandings.
(iii) Concurrently with the effectiveness of any assignment by any DIP L/C Synthetic Lender of all or any portion of its Synthetic Deposit, the corresponding portion of the assignor’s Synthetic Deposit Sub-Account shall be transferred from the assignor’s Synthetic Deposit Sub-Account to the assignee’s Synthetic Deposit Sub-Account in accordance with Section 12.11 and, if required by Section 12.11, the Administrative Agent shall close such assignor’s Synthetic Deposit Sub-Account.
(iv) Upon the occurrence of the Maturity Termination Date (other than the return of the portion of the Synthetic Deposit of each DIP L/C Synthetic Lender on deposit in the Synthetic Deposit Account), in the event that all DIP Synthetic Letters of Credit have been returned, replaced, cancelled or Cash Collateralized (other than including with Synthetic Deposits), all amounts remaining in the Synthetic Deposit Account shall be returned to the DIP L/C Synthetic Lenders based on such DIP L/C Synthetic Lender’s Synthetic Deposit Percentage.
(d) On each day on which Participation Fees are required to be paid with respect to all or any portion of the Synthetic Deposits pursuant to clause (cb) of Section 3.2.1, the Administrative Agent shall pay to each DIP L/C Synthetic Lender an amount (the “Synthetic Deposit Return”) equal to (i) the Base Return for the relevant Investment Period less an amount equal to 0.10% per annum on such Synthetic Deposits multiplied by (ii) such DIP L/C Synthetic Lender’s Synthetic Deposit Percentage. Any amounts earned and received with respect to Synthetic Deposits during any applicable Investment Period in excess of the Base Return shall be for the account of the Administrative Agent. No Person other than the Administrative Agent shall have any obligation under or in respect of this clause.
(e) Notwithstanding anything to the contrary in this Agreement, the Borrower shall not be liable for any losses due to (i) the misappropriation of any Base Return or Synthetic Deposit or (ii) the failure of the Administrative Agent to pay the Synthetic Deposit Return to any DIP L/C Synthetic Lender (it being understood and agreed for greater certainty that this clause shall not limit any obligation of the Borrower hereunder to pay any Participation Fee). Neither the Administrative Agent, the DIP Letter of Credit Synthetic Issuer nor any other Person guarantees any rate of return on the investment of any Synthetic Deposit held in the Synthetic Deposit Account.
(f) Notwithstanding any other provision of this Agreement, no DIP Synthetic Letter of Credit shall be issued nor any Stated Amount of any DIP Synthetic Letter of Credit increased, if, after giving effect thereto, the DIP Synthetic Letter of Credit Outstandings would exceed the Synthetic Account Balance.
(g) If the DIP Letter of Credit Synthetic Issuer is enjoined from taking any action referred to in clause (dc) of this Section 2.42.1.4, or if the DIP Letter of Credit Synthetic Issuer reasonably determines that, by operation of law, it may reasonably be precluded from taking any such action, or if any Obligor or DIP L/C Synthetic Lender challenges in any legal proceeding any of the acknowledgements, agreements or characterizations set forth in any of clause (a) of this Section 2.42.1.4, then, in any such case (and so long as such event or condition shall be continuing), and notwithstanding anything contained herein to the contrary, the DIP Letter of Credit Synthetic Issuer shall not be required to issue, renew or extend any DIP Synthetic Letter of Credit.
(h) In the event any payment of a DIP Letter of Credit Synthetic Reimbursement Obligation shall be required to be refunded by the DIP Letter of Credit Synthetic Issuer to the Borrower after the return of the Synthetic Deposits to the DIP L/C Synthetic Lenders as permitted hereunder, each DIP L/C Synthetic Lender agrees to acquire and fund a participation in such refunded amount equal to the lesser of its Synthetic Deposit Percentage thereof and the amount of its Synthetic Deposit that shall have been so returned.
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Synthetic Deposit Account. (a) On or prior after to the Closing Second Amendment Effective Date, the Administrative Agent shall establish the Synthetic Deposit Account. The Administrative Agent shall maintain records enabling it to determine at any time the amount of the interest of each DIP L/C Synthetic Lender in the Synthetic Deposit Account (the interest of each DIP L/C Synthetic Lender in the Synthetic Deposit Account, as evidenced by such records, being referred to as such Lender’s “Synthetic Deposit Sub-Account”). The Administrative Agent shall establish such additional Synthetic Deposit Sub-Accounts for assignee Lenders as shall be required pursuant to Section 12.1111.5. No Person (other than the Administrative Agent or any of its sub-agents) shall have the right to make any withdrawals from the Synthetic Deposit Account or exercise any other right or power with respect thereto, except as expressly provided herein. Without limiting the generality of the foregoing, each party hereto acknowledges and agrees that no amount on deposit at any time in the Synthetic Deposit Account (i) shall be the property of any Secured Party (other than the Administrative Agent for the benefit of the DIP Letter of Credit IssuerSynthetic Issuing Bank) and (ii) shall constitute Collateral “Collateral” under the Loan Documents other than in favor of the DIP Letter of Credit Issuer Synthetic Issuing Bank in respect of DIP Synthetic Letter of Credit Participation Obligations. In addition, each DIP L/C Lender hereby grants to the Administrative Agent for the benefit of the DIP Letter of Credit Issuer a security interest in its rights and interests in such DIP L/C Lender’s Each Synthetic Deposit to secure the obligations of such DIP L/C Lender hereunder. Each DIP L/C Lender agrees that its right, title and interest with respect to the Synthetic Deposit Account shall be limited to the right to require amounts in its Synthetic Deposit Sub-Account to be used as expressly set forth herein and that it will have no right to require the return of its Synthetic Deposit other than as expressly provided herein (each DIP L/C Synthetic Lender hereby acknowledging that its Synthetic Deposit constitutes payment for its DIP Synthetic Letter of Credit Participation Obligations and that the DIP Letter of Credit Issuer Synthetic Issuing Bank will be issuing, amending, renewing and extending DIP Synthetic Letters of Credit in reliance on the availability of such Lender’s Synthetic Deposit to discharge such Lender’s obligations in accordance with clause (c) of this Section 2.4 2.16 and Section 2.9.32.17(c)). The funding of the Synthetic Deposits and the agreements with respect thereto set forth in this Agreement constitute arrangements solely among the Administrative Agent, the DIP Letter of Credit Issuer Synthetic Issuing Bank and the DIP L/C Synthetic Lenders with respect to the funding and reimbursement obligations of the DIP L/C Synthetic Lenders under this Agreement, and do not constitute loans, extensions of credit or other financial accommodations to any ObligorLoan Party.
(b) On The following amounts will be deposited in the Closing Synthetic Deposit Account at the following times:
(i) At any time after the Synthetic Facility Availability Date, upon the written request (the “Synthetic Request”) of EnergySolutions substantially in the form of Exhibit D hereto or as reasonably acceptable to the Administrative Agent, each DIP L/C Synthetic Lender shall deposit in the Synthetic Deposit Account (via the Administrative Agent) an amount in Dollars equal to such Lender’s Synthetic Deposit Amount less an original issue discount of 3.00%; (each amount so depositedAmount. Thereafter, the Synthetic Deposits shall be available, on the terms and subject to the conditions set forth herein, for application pursuant to Section 2.16(d)(i), to reimburse such Lender’s “Synthetic Deposit Percentage of Disbursements that are not reimbursed by EnergySolutions.
(ii) On any date prior to the Synthetic Letter of Credit Maturity Date on which the Administrative Agent or the Synthetic Issuing Bank receives any reimbursement payment from EnergySolutions in respect of a Disbursement, with respect to which amounts were withdrawn from the Synthetic Deposit Account to reimburse or pay such Disbursement, the Administrative Agent shall deposit in the Synthetic Deposit Account, and credit to the Synthetic Deposit Sub-Accounts of the Synthetic Lenders, the portion of such reimbursement or other payment to be deposited therein, in accordance with Section 2.17(d).
(iii) Concurrently with the effectiveness of any assignment by any Lender of all or any portion of its Synthetic Deposit”); provided, however, that an amount equal to the foregoing amount of original issue discount shall, immediately upon the occurrence of the Closing Date, be funded Administrative Agent shall transfer into the Synthetic Deposit Sub-Account from of the NM Loans funded assignee the corresponding portion of the amount on deposit in the Closing Date into the Reserve Account and deemed to be a assignor’s Synthetic Deposit of the DIP L/C Lenders who received such original issue discount for all purposes hereunder, and after the Closing Date treated the same as all other Synthetic Deposits of such DIP L/C LendersSub-Account in accordance with Section 11.5(c).
(c) Each DIP L/C Synthetic Lender irrevocably and unconditionally agrees that its Synthetic Deposits Deposit in the Synthetic Deposit Account shall be withdrawn and distributed as follows:
(i) In the event the Borrower EnergySolutions does not reimburse the DIP Synthetic Letter of Credit Issuer pursuant to Section 2.9.32.17(d), the Administrative Agent shall withdraw from the Synthetic Deposit Account the amount of such unreimbursed Disbursement (and debit the Synthetic Deposit Sub-Account of each DIP L/C Synthetic Lender in the amount of such DIP L/C Synthetic Lender’s Synthetic Deposit Percentage of such unreimbursed Disbursement) and make such amount available to the DIP Letter of Credit Issuer Synthetic Issuing Bank and the DIP Letter of Credit Synthetic Facility Available Amount shall be reduced by such amount.
(ii) In the event the Borrower EnergySolutions voluntarily decides to permanently reduce the DIP Letter of Credit Synthetic Facility Available AmountAmount pursuant to Section 2.7(d), the Administrative Agent will, subject to payment of the Exit Fee, will withdraw from the Synthetic Deposit Account an amount equal to such reduction, and pay to each DIP L/C Synthetic Lender an amount equal to the product of (A) such Lender’s Synthetic Deposit Percentage multiplied by (B) the aggregate amount of such reduction. In no event shall the DIP Letter of Credit Synthetic Facility Available Amount be reduced to an amount that is less than the aggregate amount of the DIP Synthetic Letter of Credit Outstandings.
(iii) Concurrently with the effectiveness of any assignment by any DIP L/C Synthetic Lender of all or any portion of its Synthetic Deposit, the corresponding portion of the assignor’s Synthetic Deposit Sub-Account shall be transferred from the assignor’s Synthetic Deposit Sub-Account to the assignee’s Synthetic Deposit Sub-Account in accordance with Section 12.11 11.5 and, if required by Section 12.1111.5, the Administrative Agent shall close such assignor’s Synthetic Deposit Sub-Account.
(iv) Upon the occurrence of the Maturity Date (other than the return of the portion reduction of the Synthetic Deposit of each DIP L/C Lender on deposit in Facility Available Amount and the Synthetic Deposit Account), in the event that all DIP Letters Letter of Credit have been returned, replaced, cancelled or Cash Collateralized (other than with Synthetic Deposits)Outstandings to zero, all amounts remaining in the Synthetic Deposit Account shall be returned to the DIP L/C Synthetic Lenders based on such DIP L/C Synthetic Lender’s Synthetic Deposit Percentage.
(d) Each of the Issuing Bank and each Synthetic Lender hereby acknowledges and agrees that the Administrative Agent has agreed to invest the Synthetic Deposits as determined by the Borrower and the Administrative Agent so as to earn a return (except during periods when such Synthetic Deposits are used to cover unreimbursed Disbursements) equal to the Base Return for the relevant Investment Period less an amount equal to 0.15% per annum on such Synthetic Deposits. On each day on which Participation Fees are required to be paid with respect to all or any portion of the Synthetic Deposits pursuant to clause (c) of Section 3.2.12.5(d)(ii), the Administrative Agent shall pay to each DIP L/C Synthetic Lender an amount (the “Synthetic Deposit Return”) equal to (i) the Base Return for the relevant Investment Period less an amount equal to 0.100.15% per annum on such Synthetic Deposits multiplied by (ii) such DIP L/C Synthetic Lender’s Synthetic Deposit Percentage. Any amounts earned and received with respect to Synthetic Deposits during any applicable Investment Period in excess of the Base Return shall be for the account of the Administrative Agent. No Person other than the Administrative Agent shall have any obligation under or in respect of this clause.
(e) Notwithstanding anything to the contrary in this Agreement, the Borrower EnergySolutions shall not be liable for any losses due to (i) the misappropriation of any Base Return or Synthetic Deposit or (ii) the failure of the Administrative Agent to pay the Synthetic Deposit Return to any DIP L/C Synthetic Lender (it being understood and agreed for greater certainty that this clause shall not limit any obligation of the Borrower EnergySolutions hereunder to pay any Participation Fee). Neither the Administrative Agent, the DIP Letter of Credit Issuer Synthetic Issuing Bank, any Loan Party nor any other Person guarantees any rate of return on the investment of any Synthetic Deposit held in the Synthetic Deposit Account.
(f) Notwithstanding any other provision of this Agreement, no DIP Letter of Credit shall be issued nor any Stated Amount of any DIP Letter of Credit increased, if, after giving effect thereto, the DIP Letter of Credit Outstandings would exceed If the Synthetic Account Balance.
(g) If the DIP Letter of Credit Issuer Issuing Bank is enjoined from taking any action referred to in clause (dc) of this Section 2.42.16, or if the DIP Letter of Credit Issuer Synthetic Issuing Bank reasonably determines that, by operation of law, it may reasonably be precluded from taking any such action, or if any Obligor Loan Party or DIP L/C Synthetic Lender challenges in any legal proceeding any of the acknowledgements, agreements or characterizations set forth in any of clause (a) of this Section 2.42.16, then, in any such case (and so long as such event or condition shall be continuing), and notwithstanding anything contained herein to the contrary, the DIP Letter of Credit Issuer Synthetic Issuing Bank shall not be required to issue, renew or extend any DIP Synthetic Letter of Credit.
(hg) In the event any payment of a DIP Letter of Credit Synthetic Reimbursement Obligation shall be required to be refunded by the DIP Letter of Credit Issuer Synthetic Issuing Bank to the Borrower EnergySolutions after the return of the Synthetic Deposits to the DIP L/C Synthetic Lenders as permitted hereunder, each DIP L/C Synthetic Lender agrees to acquire and fund a participation in such refunded amount equal to the lesser of its Synthetic Deposit Percentage thereof hereof and the amount of its Synthetic Deposit that shall have been so returned.
Appears in 1 contract
Synthetic Deposit Account. (a) On or prior to the Closing Date, the Administrative Agent shall establish the Synthetic Deposit Account. The Administrative Agent shall maintain records enabling it to determine at any time the amount of the interest of each DIP Synthetic L/C Lender in the Synthetic Deposit Account (the interest of each DIP L/C Lender in the Synthetic Deposit Account, as evidenced by such records, being referred to as such Lender’s “Synthetic Deposit Sub-Account”). The Administrative Agent shall establish such additional Synthetic Deposit Sub-Accounts for any assignee Synthetic L/C Lenders as shall be required pursuant to Section 12.11this Agreement. No Person (other than the Administrative Agent or any of its sub-agents) shall have the right to make any withdrawals withdrawal from the Synthetic Deposit Account or to exercise any other right or power with respect thereto, except as expressly provided herein. Without limiting the generality of the foregoing, each party hereto acknowledges and agrees that no amount on deposit at any time in the Each Synthetic Deposit Account (i) shall be the property of any Secured Party (other than the Administrative Agent for the benefit of the DIP Letter of Credit Issuer) and (ii) shall constitute Collateral under the Loan Documents other than in favor of the DIP Letter of Credit Issuer in respect of DIP Letter of Credit Participation Obligations. In addition, each DIP L/C Lender hereby grants to the Administrative Agent for the benefit of the DIP Letter of Credit Issuer a security interest in its rights and interests in such DIP L/C Lender’s Synthetic Deposit to secure the obligations of such DIP L/C Lender hereunder. Each DIP L/C Lender agrees that its right, title and interest with respect in and to the Synthetic Deposit Account shall be limited to the right to require amounts in its Synthetic Deposit Sub-Account to be used as expressly set forth herein and that it will have no right to require the return of its any Synthetic Deposit other than as expressly provided herein (each DIP herein. Each Synthetic L/C Lender hereby acknowledging acknowledges that (A) its Synthetic Deposit constitutes payment for its DIP Letter Synthetic L/C Participation Obligation, (B) its Synthetic Deposit and any investments made therewith shall secure its obligations to the Issuing Bank hereunder (each Synthetic L/C Lender hereby granting to the Administrative Agent, for the benefit of Credit Participation Obligations the Issuing Bank, a security interest in its Synthetic Deposit and agreeing that the DIP Letter Administrative Agent, as holder of Credit Issuer the Synthetic Deposits and any investments made therewith, will be acting as collateral agent for the Issuing Bank) and (C) the Issuing Bank will be issuing, amending, renewing and extending DIP Letters of Credit Synthetic L/Cs in reliance on the availability of such Synthetic L/C Lender’s Synthetic Deposit to discharge such Synthetic L/C Lender’s obligations in connection with any Synthetic L/C Drawing (or arranging therefor) in accordance with clause Section 4.03(a). Each Synthetic L/C Lender hereby grants to the Administrative Agent for the benefit of the Issuing Bank a security interest in its rights and interests in such Synthetic L/C Lender’s Synthetic Deposit to secure the obligations of such Synthetic L/C Lender hereunder.
(cb) Each of the Administrative Agent, the Issuing Bank and each Synthetic L/C Lender hereby acknowledges and agrees that (A) each Synthetic L/C Lender is funding its Synthetic Deposit to the Administrative Agent for application in the manner contemplated by Section 4.03(b) and (B) the Administrative Agent may invest the Synthetic Deposits in such investments as may be determined from time to time by the Administrative Agent; provided that the Administrative Agent agrees to make such investments in a manner so as to earn a return sufficient to make its payment obligations to the Synthetic L/C Lenders under this Section 2.4 and Section 2.9.34.08(b). The funding Administrative Agent hereby agrees to pay to each Synthetic L/C Lender, other than an Electing Synthetic L/C Lender, quarterly in arrears, on the last Business Day of the month, interest (computed on the basis of the actual number of days elapsed over a year of 360 days) on the amount of such Synthetic L/C Lender’s Pro Rata Share of the aggregate amount of the Synthetic Deposits during the month ending on such date at a rate per annum (reset monthly) equal to the rate for one-month LIBOR Rate for such month. With respect to any interest period during which a Synthetic L/C Advance is deemed made, the Administrative Agent shall determine the amount of interest payable by the Borrower on such Synthetic L/C Advance for the portion of the relevant interest period during which such Synthetic L/C Advance is outstanding pursuant to Section 4.03(b) and the agreements amount of interest payable by the Administrative Agent on the Synthetic Deposits during such interest period pursuant to the applicable provisions of this Agreement, and such determination shall be conclusive absent manifest error.
(c) Each party hereto acknowledges and agrees that no Credit Party shall have any right, title or interest in or to the Synthetic Deposits, the Synthetic Deposit Account or any Synthetic Deposit Sub-Account and no obligations with respect thereto set forth thereto, it being acknowledged and agreed by the parties hereto that the making of the Synthetic Deposits by the Synthetic L/C Lenders, the provisions of this Section 4.08 and the application of the Synthetic Deposits in this Agreement the manner contemplated by Section 4.03 constitute arrangements solely agreements among the Administrative Agent, the DIP Letter of Credit Issuer Issuing Bank and the DIP each Synthetic L/C Lenders Lender with respect to the funding and reimbursement obligations of each Synthetic L/C Lender in respect of its participation in Synthetic L/Cs and do not constitute any loan or extension of credit to the DIP Borrower. Without limiting the generality of the foregoing, each party hereto acknowledges and agrees that the Synthetic Deposits are and at all times will continue to be property of the Synthetic L/C Lenders under this Agreement, and do not constitute loans, extensions of credit or other financial accommodations to that no amount on deposit at any Obligor.
(b) On the Closing Date, each DIP L/C Lender shall deposit in the Synthetic Deposit Account an amount in Dollars equal to such Lender’s Synthetic Deposit Amount less an original issue discount of 3.00%; (each amount so deposited, such Lender’s “Synthetic Deposit”); provided, however, that an amount equal to the foregoing amount of original issue discount shall, immediately upon the occurrence of the Closing Date, be funded into the Synthetic Deposit Account from the NM Loans funded on the Closing Date into the Reserve Account and deemed to be a Synthetic Deposit of the DIP L/C Lenders who received such original issue discount for all purposes hereunder, and after the Closing Date treated the same as all other Synthetic Deposits of such DIP L/C Lenders.
(c) Each DIP L/C Lender irrevocably and unconditionally agrees that its Synthetic Deposits time in the Synthetic Deposit Account shall be withdrawn and distributed as follows:the property of any Credit Party, constitute “Collateral” under the Loan Documents or otherwise be available in any manner to satisfy any Obligation of any Credit Party under the Loan Documents.
(id) In Upon the Maturity Date, in the event that all Synthetic L/Cs have been returned, cancelled or Cash Collateralized (at an amount equal to 102% of the Borrower does not reimburse Outstanding Amount thereof), all amounts on deposit in, or credited to, the DIP Letter Synthetic Deposit Account shall be returned to the Synthetic L/C Lenders based on each Synthetic L/C Lender’s Pro Rata Share of Credit Issuer pursuant to Section 2.9.3such amount.
(e) If, for any date of determination of the LIBOR Rate, the Administrative Agent shall withdraw from have determined (which determination shall be conclusive and binding on each Synthetic L/C Lender) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the LIBOR Rate, the Administrative Agent shall give notice thereof to the Synthetic L/C Lenders and until such notice has been withdrawn, the Synthetic Deposits on deposit in the Synthetic Deposit Account the amount of such unreimbursed Disbursement (and debit the Synthetic Deposit Sub-Account of each DIP L/C Lender in the amount of such DIP L/C Lender’s Synthetic Deposit Percentage of such unreimbursed Disbursement) and make such amount available to the DIP Letter of Credit Issuer and the DIP Letter of Credit Available Amount shall be reduced invested so as to earn a return equal to a rate determined by such amountthe Administrative Agent in accordance with banking industry rules on interbank compensation.
(ii) In the event the Borrower voluntarily decides to permanently reduce the DIP Letter of Credit Available Amount, the Administrative Agent will, subject to payment of the Exit Fee, withdraw from the Synthetic Deposit Account an amount equal to such reduction, and pay to each DIP L/C Lender an amount equal to the product of (A) such Lender’s Synthetic Deposit Percentage multiplied by (B) the aggregate amount of such reduction. In no event shall the DIP Letter of Credit Available Amount be reduced to an amount that is less than the aggregate amount of the DIP Letter of Credit Outstandings.
(iiif) Concurrently with the effectiveness of any assignment by any DIP Synthetic L/C Lender of all or any portion of its Synthetic DepositL/C Commitment, the corresponding portion of the assignorassigning Lender’s Synthetic Deposit Sub-Account shall be transferred from to the assignorassignee Lender’s Synthetic Deposit Sub-Account to the assignee’s Synthetic Deposit Sub-Account in accordance with Section 12.11 and, if required by Section 12.11required, the Administrative Agent shall close such assignorassigning Synthetic L/C Lender’s Synthetic Deposit Sub-Account.
(ivg) Upon any payment of a Synthetic L/C Borrowing or payment or prepayment of any Synthetic L/C Term Loan resulting therefrom, the occurrence of the Maturity Date (other than the return of the portion of the Issuing Bank shall promptly transfer to each Synthetic Deposit of each DIP L/C Lender on deposit in the amount of such Synthetic Deposit Account), in the event that all DIP Letters of Credit have been returned, replaced, cancelled or Cash Collateralized (other than with Synthetic Deposits), all amounts remaining in the Synthetic Deposit Account shall be returned to the DIP L/C Lenders based on such DIP L/C Lender’s Synthetic Deposit Percentage.
(d) On each day on which Participation Fees are required to be paid with respect to all or any portion Pro Rata Share of the Synthetic Deposits pursuant to clause (c) of Section 3.2.1, the Administrative Agent shall pay to each DIP L/C Lender an amount (the “Synthetic Deposit Return”) equal to (i) the Base Return for the relevant Investment Period less an amount equal to 0.10% per annum on such Synthetic Deposits multiplied by (ii) such DIP L/C Lender’s Synthetic Deposit Percentage. Any amounts earned and received with respect to Synthetic Deposits during any applicable Investment Period in excess of the Base Return shall be for the account of the Administrative Agent. No Person other than the Administrative Agent shall have any obligation under or in respect of this clause.
(e) Notwithstanding anything to the contrary in this Agreement, the Borrower shall not be liable for any losses due to (i) the misappropriation of any Base Return or Synthetic Deposit or (ii) the failure of the Administrative Agent to pay the Synthetic Deposit Return to any DIP L/C Lender (it being understood and agreed for greater certainty that this clause shall not limit any obligation of the Borrower hereunder to pay any Participation Fee). Neither the Administrative Agent, the DIP Letter of Credit Issuer nor any other Person guarantees any rate of return on the investment of any Synthetic Deposit held in the Synthetic Deposit Account.
(f) Notwithstanding any other provision of this Agreement, no DIP Letter of Credit shall be issued nor any Stated Amount of any DIP Letter of Credit increased, if, after giving effect thereto, the DIP Letter of Credit Outstandings would exceed the Synthetic Account Balance.
(g) If the DIP Letter of Credit Issuer is enjoined from taking any action referred to in clause (d) of this Section 2.4, or if the DIP Letter of Credit Issuer reasonably determines that, by operation of law, it may reasonably be precluded from taking any such action, or if any Obligor or DIP L/C Lender challenges in any legal proceeding any of the acknowledgements, agreements or characterizations set forth in clause (a) of this Section 2.4, then, in any such case (and so long as such event or condition shall be continuing), and notwithstanding anything contained herein to the contrary, the DIP Letter of Credit Issuer shall not be required to issue, renew or extend any DIP Letter of Credit.
(h) In the event any payment of a DIP Letter of Credit Reimbursement Obligation shall be required to be refunded by the DIP Letter of Credit Issuer to the Borrower after the return of the Synthetic Deposits to the DIP L/C Lenders as permitted hereunder, each DIP L/C Lender agrees to acquire and fund a participation in such refunded amount equal to the lesser of its Synthetic Deposit Percentage thereof and the aggregate amount of its Synthetic Deposit that shall have been so returnedsuch payment or prepayment.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (SOI Holdings, Inc.)
Synthetic Deposit Account. (a) On or prior to the Closing Date, the Administrative Agent Synthetic LC Bank shall establish the Synthetic Deposit Account. The Administrative Agent shall maintain records enabling it to determine at any time the amount of the interest of each DIP L/C Lender in the Synthetic Deposit Account (the interest of each DIP L/C Lender in the Synthetic Deposit Account, as evidenced by such records, being referred to as such Lender’s “Synthetic Deposit Sub-Account”). The Administrative Agent shall establish such additional Synthetic Deposit Sub-Accounts for assignee Lenders as shall be required pursuant to Section 12.11. No Person (other than the Administrative Agent Synthetic LC Bank (or any of its sub-agents) shall have the right to make any withdrawals withdrawal from the Synthetic Deposit Account or to exercise any other right or power with respect thereto, except as expressly provided herein. Without limiting the generality of the foregoing, each party hereto acknowledges and agrees that no amount on deposit at any time in the Each Synthetic Deposit Account (i) shall be the property of any Secured Party (other than the Administrative Agent for the benefit of the DIP Letter of Credit Issuer) and (ii) shall constitute Collateral under the Loan Documents other than in favor of the DIP Letter of Credit Issuer in respect of DIP Letter of Credit Participation Obligations. In addition, each DIP L/C Lender hereby grants to the Administrative Agent for the benefit of the DIP Letter of Credit Issuer a security interest in its rights and interests in such DIP L/C Lender’s Synthetic Deposit to secure the obligations of such DIP L/C Lender hereunder. Each DIP L/C LC Lender agrees that its right, title and interest with respect in and to the Synthetic Deposit Account shall be limited to the right to require amounts in its Synthetic Deposit Sub-Account to be used as expressly set forth herein and that it will have no right to require the return of its any Synthetic Deposit other than as expressly provided herein (each DIP L/C herein. Each Synthetic LC Lender hereby acknowledging acknowledges that (i) its Synthetic Deposit constitutes payment for its DIP Letter of Credit Synthetic LC Participation Obligations Obligation, (ii) its Synthetic Deposit and any investments made therewith shall secure its obligations to the Synthetic LC Bank hereunder (each Synthetic LC Lender hereby granting to the Synthetic LC Bank, a security interest in its Synthetic Deposit and agreeing that the DIP Letter Synthetic LC Bank, as holder of Credit Issuer the Synthetic Deposits and any investments made therewith, will be acting as collateral agent) and (iii) the Synthetic LC Bank will be issuing, amending, renewing and extending DIP Synthetic Letters of Credit in reliance on the availability of such Lender’s 's Synthetic Deposit to discharge such Lender’s 's obligations in connection with any Unreimbursed Amount under the Synthetic Letters of Credit in accordance with clause (c) of this Section 2.4 and Section 2.9.32.2.6(g). Each Synthetic LC Lender hereby grants to the Synthetic LC Bank a security interest in its rights and interests in such Synthetic LC Lender's Synthetic Deposit to secure the obligations of such Synthetic LC Lender hereunder.
(b) Each of the Administrative Agent, the Synthetic LC Bank and each Synthetic LC Lender hereby acknowledges and agrees that (i) each Synthetic LC Lender is funding its Synthetic Deposit to the Synthetic LC Bank for application in the manner contemplated by Section 2.2.6(g) and (ii) the Synthetic LC Bank may invest the Synthetic Deposits in such investments as may be determined from time to time by the Synthetic LC Bank in its sole discretion; provided that the Synthetic LC Bank agrees to make such investments in a manner so as to earn a return equal at any time to the Adjusted LIBOR Rate in effect for the applicable Investment Period. The funding Synthetic LC Bank hereby agrees to pay to the Administrative Agent for the account of each Synthetic LC Lender, on each Interest Payment Date, interest (computed on the basis of the actual number of days elapsed over a year of 360 days) on the amount of such Synthetic LC Lender's Pro Rata Share of the aggregate amount of the Synthetic Deposits during the Investment Period ending on such date at a rate per annum equal to the Adjusted LIBOR Rate for such Investment Period less the Synthetic Deposit Cost Amount attributable thereto (which amount shall be retained by the Synthetic LC Bank for its own account).
(c) Each party hereto acknowledges and agrees that no Pledgor or Loan Party shall have any right, title or interest in or to the Synthetic Deposits or the Synthetic Deposit Account and no obligations with respect thereto, it being acknowledged and agreed by the parties hereto that the making of the Synthetic Deposits by the Synthetic LC Lenders, the provisions of this Section 2.2.8 and the application of the Synthetic Deposits in the manner contemplated by Section 2.2.6(g) constitute agreements with respect thereto set forth in this Agreement constitute arrangements solely among the Administrative Agent, the DIP Letter of Credit Issuer Synthetic LC Bank and the DIP L/C Lenders each Synthetic LC Lender with respect to the funding and reimbursement obligations of the DIP L/C Lenders under this Agreement, each Synthetic LC Lender in respect of its participation in Synthetic Letters of Credit and do not constitute loans, extensions any loan or extension of credit or other financial accommodations to any Obligor.
(b) On the Closing Date, each DIP L/C Lender shall deposit in the Synthetic Deposit Account an amount in Dollars equal to such Lender’s Synthetic Deposit Amount less an original issue discount of 3.00%; (each amount so deposited, such Lender’s “Synthetic Deposit”); provided, however, that an amount equal to the foregoing amount of original issue discount shall, immediately upon the occurrence of the Closing Date, be funded into the Synthetic Deposit Account from the NM Loans funded on the Closing Date into the Reserve Account and deemed to be a Synthetic Deposit of the DIP L/C Lenders who received such original issue discount for all purposes hereunder, and after the Closing Date treated the same as all other Synthetic Deposits of such DIP L/C Lenders.
Borrower: provided that nothing in this clause (c) Each DIP L/C Lender irrevocably to the contrary shall limit the Borrower's rights under Section 2.2.6(a), 2.2.6(g) , 2.2.6(h) or 2.2.8(e). Without limiting the generality of the foregoing, each party hereto acknowledges and unconditionally agrees that its the Synthetic Deposits are and at all times will continue to be property of the Synthetic LC Lenders and that no amount on deposit at any time in the Synthetic Deposit Account shall be withdrawn and distributed as follows:
(i) In the event property of the Borrower does not reimburse Pledgor or any Loan Party, constitute "Collateral" under the DIP Letter Financing Documents or otherwise be available in any manner to satisfy any Obligation of Credit Issuer pursuant to Section 2.9.3, the Administrative Agent shall withdraw from Pledgor or any Loan Party under the Synthetic Deposit Account the amount of such unreimbursed Disbursement (and debit the Synthetic Deposit Sub-Account of each DIP L/C Lender in the amount of such DIP L/C Lender’s Synthetic Deposit Percentage of such unreimbursed Disbursement) and make such amount available to the DIP Letter of Credit Issuer and the DIP Letter of Credit Available Amount shall be reduced by such amountFinancing Documents.
(iid) In If the event Synthetic LC Bank shall have determined (which determination shall be conclusive and binding on each Synthetic LC Lender) that, by reason of circumstances affecting the Borrower voluntarily decides to permanently reduce relevant market, adequate and reasonable means do not exist for ascertaining the DIP Letter of Credit Available AmountAdjusted LIBOR Rate, the Administrative Agent will, subject Synthetic LC Bank shall give notice thereof to payment of the Exit Fee, withdraw from the Synthetic Deposit Account an amount equal to LC Lenders and until such reduction, and pay to each DIP L/C Lender an amount equal to the product of (A) such Lender’s Synthetic Deposit Percentage multiplied by (B) the aggregate amount of such reduction. In no event shall the DIP Letter of Credit Available Amount be reduced to an amount that is less than the aggregate amount of the DIP Letter of Credit Outstandings.
(iii) Concurrently with the effectiveness of any assignment by any DIP L/C Lender of all or any portion of its Synthetic Depositnotice has been withdrawn, the corresponding portion of the assignor’s Synthetic Deposit Sub-Account shall be transferred from the assignor’s Synthetic Deposit Sub-Account to the assignee’s Synthetic Deposit Sub-Account in accordance with Section 12.11 and, if required by Section 12.11, the Administrative Agent shall close such assignor’s Synthetic Deposit Sub-Account.
(iv) Upon the occurrence of the Maturity Date (other than the return of the portion of the Synthetic Deposit of each DIP L/C Lender Deposits on deposit in the Synthetic Deposit Account), in the event that all DIP Letters of Credit have been returned, replaced, cancelled or Cash Collateralized (other than with Synthetic Deposits), all amounts remaining in the Synthetic Deposit Account shall be returned invested so as to earn a return equal to the DIP L/C Lenders based on such DIP L/C Lender’s Synthetic Deposit Percentage.
(d) On each day on which Participation Fees are required to be paid with respect to all or any portion greater of the Federal Funds Effective Rate and a rate determined by the Synthetic Deposits pursuant to clause (c) of Section 3.2.1, the Administrative Agent shall pay to each DIP L/C Lender an amount (the “Synthetic Deposit Return”) equal to (i) the Base Return for the relevant Investment Period less an amount equal to 0.10% per annum LC Bank in accordance with banking industry rules on such Synthetic Deposits multiplied by (ii) such DIP L/C Lender’s Synthetic Deposit Percentage. Any amounts earned and received with respect to Synthetic Deposits during any applicable Investment Period in excess of the Base Return shall be for the account of the Administrative Agent. No Person other than the Administrative Agent shall have any obligation under or in respect of this clauseinterbank compensation.
(e) Notwithstanding anything to the contrary in this AgreementThe Synthetic LC Bank shall return amounts on deposit in, or credited to, the Borrower shall not be liable for any losses due to (i) the misappropriation of any Base Return or Synthetic Deposit or (ii) the failure of Account to the Administrative Agent for further payment to pay each Synthetic LC Lender based on such Synthetic LC Lender's Pro Rata Share of such amount (and the Administrative Agent shall make such payment to each Synthetic LC Lender promptly upon receipt of such funds) on the earliest to occur of: (a) a Repayment Event (whether or not an Event of Default of the type described in Section 6.1(e) has occurred), (b) on the first date on or after the Maturity Date with respect to the Synthetic Deposit Return LC Facility on which the Synthetic LC Exposure has been reduced to any DIP L/C Lender zero; (it being understood and agreed for greater certainty that this clause shall not limit any obligation c) following the occurrence of an Event of Default (other than Event of Default of the type described in Section 6.1(e)), on the date occurring 91 days after the Borrower hereunder to pay any Participation Fee). Neither the Administrative Agent, the DIP Letter has cash collateralized all Synthetic Letters of Credit Issuer nor any other Person guarantees any rate of return on the investment of any Synthetic Deposit held in the Synthetic Deposit Account.
(f) Notwithstanding any other provision of this Agreement, no DIP Letter of Credit shall be issued nor any Stated Amount of any DIP Letter of Credit increased, if, after giving effect thereto, the DIP Letter of Credit Outstandings would exceed the Synthetic Account Balance.
(g) If the DIP Letter of Credit Issuer is enjoined from taking any action referred pursuant to in clause Section 6.3(d)and (d) following the occurrence of this Section 2.4, or if the DIP Letter an Event of Credit Issuer reasonably determines that, by operation of law, it may reasonably be precluded from taking any such action, or if any Obligor or DIP L/C Lender challenges in any legal proceeding any Default of the acknowledgements, agreements or characterizations set forth type described in clause (a) of this Section 2.4, then, in any such case (and so long as such event or condition shall be continuing6.1(e), after the termination and notwithstanding anything contained herein to the contrary, the DIP Letter cancellation of Credit Issuer shall not be required to issue, renew or extend any DIP Letter all Synthetic Letters of Credit.
(h) In the event any payment of a DIP Letter of Credit Reimbursement Obligation shall be required to be refunded by the DIP Letter of Credit Issuer to the Borrower after the return of the Synthetic Deposits to the DIP L/C Lenders as permitted hereunder, each DIP L/C Lender agrees to acquire and fund a participation in such refunded amount equal to the lesser of its Synthetic Deposit Percentage thereof and the amount of its Synthetic Deposit that shall have been so returned.
Appears in 1 contract
Samples: First Lien Credit and Guaranty Agreement (Kgen Power Corp)
