Defaulting Lender Provisions. Notwithstanding anything to the contrary in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law, (a) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity or otherwise) from the Borrowers for the account of a Defaulting Lender under this Agreement will not be required to be paid or distributed to such Defaulting Lender, but will instead be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreement; second, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and third, if so determined by the Administrative Agent and the Borrowers, held in an account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loan advances under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied by the Administrative Agent to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, to the payment of any amounts owing to the Lenders or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct; provided that any amounts held as cash collateral for funding obligations of a Defaulting Lender shall be returned to such Defaulting Lender upon the termination of this Agreement and the satisfaction of such Defaulting Lender’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 10.17 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 5 contracts
Samples: Business Loan and Security Agreement (Vse Corp), Business Loan and Security Agreement (Vse Corp), Business Loan and Security Agreement (Vse Corp)
Defaulting Lender Provisions. (a) Notwithstanding anything to the contrary in this Agreement, if any a Lender becomes, and during the period it remains, a Defaulting Lender, the following provisions shall apply:
(i) the L/C Liabilities of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a ) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Commitments; provided that (i) the sum of each Non-Defaulting Lender’s total Revolving Exposure may not in any event exceed the Revolving Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation, (ii) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim Borrower, Administrative Agent, any L/C Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender and (iii) no Event of Default shall exist and be continuing at the time of such reallocation (and, unless Borrower shall have otherwise notified the Administrative Agent at such time, Borrower shall be deemed to have represented and warranted that no Event of Default exists and is continuing at such time);
(ii) to the extent permitted that any portion (the “un-reallocated portion”) of the Defaulting Lender’s L/C Liabilities cannot be so reallocated, whether by applicable law,
reason of the first proviso in clause (a) Any above or otherwise, Borrower will, not later than three (3) Business Days after demand by Administrative Agent (at the direction of any L/C Lender), (i) Cash Collateralize the obligations of Borrower to the L/C Lender in respect of such L/C Liabilities, in an amount at least equal to the aggregate amount of the un-reallocated portion of such L/C Liabilities, or (ii) make other arrangements satisfactory to Administrative Agent, and to the applicable L/C Lender, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender;
(iii) Borrower shall not be required to pay any fees to such Defaulting Lender under Section 2.05(a); and
(iv) any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any such Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity maturity, pursuant to Article 11 or otherwise) or received by Administrative Agent from the Borrowers for the account of a Defaulting Lender under this Agreement will not be required pursuant to be paid or distributed to such Defaulting Lender, but will instead Section 4.07 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreementhereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any L/C Lender hereunder; third, if so determined by Administrative Agent or requested by the applicable L/C Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Letter of Credit; fourth, as Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and thirdfifth, if so determined by the Administrative Agent and the BorrowersBorrower, to be held in an a non-interest bearing deposit account as cash collateral for and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations of the Defaulting Lender in with respect of any Loan advances to Loans under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied by the Administrative Agent to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourthsixth, to the payment of any amounts owing to the Lenders or the Swing Line L/C Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line any L/C Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifthseventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s 's breach of its obligations under this Agreement; and sixtheighth, to pay amounts owing under this Agreement to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction may otherwise directjurisdiction; provided that if (x) such payment is a payment of the principal amount of any amounts held as cash collateral for funding obligations Loans or L/C Liabilities in respect of a Defaulting Lender shall be returned to which such Defaulting Lender upon has not fully funded its appropriate share, and (y) such Loans were made or the termination related Letters of this Agreement Credit were issued at a time when the conditions set forth in Section 7.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Liabilities owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the satisfaction payment of any Loans of, or L/C Liabilities owed to, such Defaulting Lender’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral Cash Collateral pursuant to this Section 10.17 2.14(a)(iv) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 2 contracts
Samples: Credit Agreement (Wynn Resorts LTD), Credit Agreement (Wynn Las Vegas LLC)
Defaulting Lender Provisions. Notwithstanding anything any provision of this Agreement to the contrary in this Agreementcontrary, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, then the following provisions shall apply to the extent permitted by applicable law,law for so long as such Lender is a Defaulting Lender:
(a) Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 11.3 and the definition of “Required Lenders”.
(b) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any such Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity maturity, pursuant to Section 7.2 or otherwise) or received by Administrative Agent from the Borrowers for the account of a Defaulting Lender under this Agreement will not be required pursuant to be paid or distributed to such Defaulting Lender, but will instead Section 2.4 shall be applied at such time or times as may be determined by the Administrative Agent as follows: (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent Agents under this Agreementthe Credit Documents; (ii) second, as Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and (iii) third, if so determined by the Administrative Agent and the Borrowers, held in an account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loan advances under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied by the Administrative Agent to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, to the payment of any amounts owing to the Lenders or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth(iv) fourth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers Borrower as a result of any then final and non-appealable judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth(v) fifth, to pay amounts owing under this Agreement to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction may otherwise direct; (provided that that, with respect to this clause (v), if such payment is a prepayment of the principal amount of any amounts held as cash collateral for funding obligations Loans in respect of which a Defaulting Lender has funded its participation obligations, such payment shall be returned applied solely to prepay the Loans of all Non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans owed to such Defaulting Lender upon the termination of this Agreement and the satisfaction of such Defaulting Lender’s obligations hereunder). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 10.17 2.4.6 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(c) If Administrative Agent states in writing, based on the cure of the applicable basis of default, that a Lender is no longer a Defaulting Lender, Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Loans to be held pro rata by the Lenders in accordance with the Commitments), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (CNX Resources Corp), Credit Agreement (CNX Resources Corp)
Defaulting Lender Provisions. (a) Notwithstanding anything to the contrary in this Agreement, if any a Lender becomes, and during the period it remains, a Defaulting Lender, the following provisions shall apply:
(i) the L/C Liabilities of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a ) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Commitments; provided that (i) the sum of each Non-Defaulting Lender’s total Revolving Exposure may not in any event exceed the Revolving Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation, (ii) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim Borrower, Administrative Agent, any L/C Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender and (iii) no Event of Default shall exist and be continuing at the time of such reallocation (and, unless Borrower shall have otherwise notified the Administrative Agent at such time, Borrower shall be deemed to have represented and warranted that no Event of Default exists and is continuing at such time);
(ii) to the extent permitted that any portion (the “un-reallocated portion”) of the Defaulting Lender’s L/C Liabilities cannot be so reallocated, whether by applicable law,
reason of the first proviso in clause (a) Any above or otherwise, Borrower will, not later than three (3) Business Days after demand by Administrative Agent (at the direction of any L/C Lender), (i) Cash Collateralize the obligations of Borrower to the L/C Lender in respect of such L/C Liabilities, in an amount at least equal to the aggregate amount of the un-reallocated portion of such L/C Liabilities, or (ii) make other arrangements satisfactory to Administrative Agent, and to the applicable L/C Lender, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender;
(iii) Borrower shall not be required to pay any fees to such Defaulting Lender under Section 2.05(a); and
(iv) any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any such Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity maturity, pursuant to Article 11 or otherwise) or received by Administrative Agent from the Borrowers for the account of a Defaulting Lender under this Agreement will not be required pursuant to be paid or distributed to such Defaulting Lender, but will instead Section 4.07 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreementhereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any L/C Lender hereunder; third, if so determined by Administrative Agent or requested by the applicable L/C Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Letter of Credit; fourth, as Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and thirdfifth, if so determined by the Administrative Agent and the BorrowersBorrower, to be held in an a non-interest bearing deposit account as cash collateral for and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations of the Defaulting Lender in with respect of any Loan advances to Loans under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied by the Administrative Agent to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourthsixth, to the payment of any amounts owing to the Lenders or the Swing Line L/C Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line any L/C Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifthseventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s 's breach of its obligations under this Agreement; and sixtheighth, to pay amounts owing under this Agreement to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction may otherwise directjurisdiction; provided that if (x) such payment is a payment of the principal amount of any amounts held as cash collateral for funding obligations Loans or L/C Liabilities in respect of a Defaulting Lender shall be returned to which such Defaulting Lender upon has not fully funded its appropriate share, and (y) such Loans were made or the termination related Letters of this Agreement Credit were issued at a time when the conditions set forth in Section 7.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Liabilities owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the satisfaction payment of any Loans of, or L/C Liabilities owed to, such Defaulting Lender’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral Cash Collateral pursuant to this Section 10.17 2.14(a)(iv) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 2 contracts
Samples: Credit Agreement (Wynn Resorts LTD), Credit Agreement (Wynn Las Vegas LLC)
Defaulting Lender Provisions. (a) Notwithstanding anything to the contrary in this Agreement, if any a Lender becomes, and during the period it remains, a Defaulting Lender, the following provisions shall apply:
(i) the L/C Liabilities of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a ) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Commitments; provided that (i) the sum of each Non-Defaulting Lender’s total Revolving Exposure may not in any event exceed the Revolving Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation, (ii) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim Borrower, Administrative Agent, any L/C Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender and (iii) no Event of Default shall exist and be continuing at the time of such reallocation (and, unless Borrower shall have otherwise notified Administrative Agent at such time, Borrower shall be deemed to have represented and warranted that no Event of Default exists and is continuing at such time);
(ii) to the extent permitted that any portion (the “un-reallocated portion”) of the Defaulting Lender’s L/C Liabilities cannot be so reallocated, whether by applicable law,
reason of the first proviso in clause (a) Any above or otherwise, Borrower will, not later than three (3) Business Days after demand by Administrative Agent (at the direction of any L/C Lender), (i) Cash Collateralize the obligations of Borrower to the L/C Lender in respect of such L/C Liabilities, in an amount at least equal to the aggregate amount of the un-reallocated portion of such L/C Liabilities, or (ii) make other arrangements satisfactory to Administrative Agent, and to the applicable L/C Lender, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender;
(iii) Borrower shall not be required to pay any fees to such Defaulting Lender under Section 2.05(a); and
(iv) any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any such Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity maturity, pursuant to Article 11 or otherwise) or received by Administrative Agent from the Borrowers for the account of a Defaulting Lender under this Agreement will not be required pursuant to be paid or distributed to such Defaulting Lender, but will instead Section 4.07 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreementhereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any L/C Lender hereunder; third, if so determined by Administrative Agent or requested by the applicable L/C Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Letter of Credit; fourth, as Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and thirdfifth, if so determined by the Administrative Agent and the BorrowersBorrower, to be held in an a non-interest bearing deposit account as cash collateral for and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations of the Defaulting Lender in with respect of any Loan advances to Loans under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied by the Administrative Agent to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourthsixth, to the payment of any amounts owing to the Lenders or the Swing Line L/C Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line any L/C Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifthseventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s 's breach of its obligations under this Agreement; and sixtheighth, to pay amounts owing under this Agreement to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction may otherwise directjurisdiction; provided that if (x) such payment is a payment of the principal amount of any amounts held as cash collateral for funding obligations Loans or L/C Liabilities in respect of a Defaulting Lender shall be returned to which such Defaulting Lender upon has not fully funded its appropriate share, and (y) such Loans were made or the termination related Letters of this Agreement Credit were issued at a time when the conditions set forth in Section 7.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Liabilities owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the satisfaction payment of any Loans of, or L/C Liabilities owed to, such Defaulting Lender’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral Cash Collateral pursuant to this Section 10.17 2.14(a)(iv) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 2 contracts
Samples: Credit Agreement (Wynn Resorts LTD), Credit Agreement (Wynn Resorts LTD)
Defaulting Lender Provisions. Notwithstanding anything Anything contained herein to the contrary notwithstanding, in this Agreement, if the event that any Lender becomes defaults in its obligation (a "FUNDING DEFAULT") to fund any Revolving Loan, purchase an assignment of a Swing Line Loan pursuant to subsection 2.1A or purchase a participation in a drawing under a Letter of Credit pursuant to subsection 3.3C (in each case, a "DEFAULTED REVOLVING LOAN"), then (i) during any Default Period with respect to such Revolving Lender (a "DEFAULTING LENDER"), such Defaulting Lender shall be deemed not to be a "Lender, then, until such time as such Lender is no longer a Defaulting Lender, " for purposes of voting on any matters (including the granting of any consents or waivers) with respect to any of the Loan Documents; (ii) to the extent permitted by applicable law,
, until such time as the Default Excess with respect to such Defaulting Lender shall have been reduced to zero, (a) Any payment any voluntary prepayment of principalthe Revolving Loans shall, interestif Company so directs at the time of making such voluntary prepayment, fees or be applied to the Revolving Loans of other amounts received by Lenders as if such Defaulting Lender had no Revolving Loans outstanding and the Administrative Agent for Revolving Loan Exposure of such Defaulting Lender were zero, and (b) any mandatory prepayment of the account Revolving Loans shall, if Company so directs at the time of making such mandatory prepayment, be applied to the Revolving Loans of other Lenders (but not to the Revolving Loans of such Defaulting Lender) as if such Defaulting Lender had funded all Defaulted Revolving Loans of such Defaulting Lender, it being understood and agreed that Company shall be entitled to retain any portion of any mandatory prepayment of the Revolving Loans that is not paid to such Defaulting Lender under solely as a result of the operation of the provisions of this Agreement clause (whether voluntary b); (iii) such Defaulting Lender's Revolving Loan Commitment and outstanding Revolving Loans and such Defaulting Lender's Pro Rata Share of the Letter of Credit Usage shall be excluded for purposes of calculating the commitment fee payable to Revolving Lenders pursuant to subsection 2.3 in respect of any day during any Default Period with respect to such Defaulting Lender, and such Defaulting Lender shall not be entitled to receive any Revolving Loan Commitment fee pursuant to subsection 2.3 with respect to such Defaulting Lender's Revolving Loan Commitment in respect of any Default Period with respect to such Defaulting Lender; and (iv) the Total Utilization of Revolving Loan Commitments as at any date of determination shall be calculated as if such Defaulting Lender had funded all Defaulted Revolving Loans of such Defaulting Lender. No Revolving Loan Commitment of any Lender shall be increased or mandatoryotherwise affected, at maturity and, except as otherwise expressly provided in this subsection 2.9B, performance by Company of its obligations hereunder and the other Loan Documents shall not be excused or otherwise) from otherwise modified as a result of any Funding Default or the Borrowers for the account operation of this subsection 2.9B. The rights and remedies against a Defaulting Lender under this Agreement will not be required subsection 2.9B are in addition to be paid or distributed to such Defaulting Lender, but will instead be applied at such time or times as other rights and remedies that Company may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreement; second, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and third, if so determined by the Administrative Agent and the Borrowers, held in an account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loan advances under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied by the Administrative Agent to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, to the payment of any amounts owing to the Lenders or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line Lender have against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, with respect to the payment of any amounts owing to the Borrowers as a result of Funding Default and that Administrative Agent or any judgment of a court of competent jurisdiction obtained by the Borrowers Lender may have against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, with respect to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct; provided that any amounts held as cash collateral for funding obligations of a Defaulting Lender shall be returned to such Defaulting Lender upon the termination of this Agreement and the satisfaction of such Defaulting Lender’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 10.17 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoFunding Default.
Appears in 1 contract
Defaulting Lender Provisions. Notwithstanding anything any provision of this Agreement to the contrary in this Agreementcontrary, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, then the following provisions shall apply to the extent permitted by applicable law,law for so long as such Lender is a Defaulting Lender:
(a) Fees shall cease to accrue on the unused portion of the Commitment of such Defaulting Lender pursuant to Section 2.4 and Section 2.5 for any period during which such Lender is a Defaulting Lender (without prejudice to the rights of the Lenders other than Defaulting Lenders in respect of such fees); provided, however, that each Defaulting Lender shall be entitled to receive LC Fees for any period during which such Lender is a Defaulting Lender only to the extent allocable to its Proportionate Share of the Drawing Amounts of the Letters of Credit for which it has provided Cash Collateral.
(b) With respect to any Commitment Fee or LC Fee not required to be paid to any Defaulting Lender pursuant to clause (a) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in LC Exposure that has been reallocated to such Non-Defaulting Lender pursuant to Section 2.7.6(e) below, (y) pay to each LC Issuer the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such LC Issuer’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(c) Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 10.3 and the definition of “Required Lenders”.
(d) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any such Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity maturity, pursuant to Section 6.2 or otherwise) or received by the Administrative Agent from the Borrowers for the account of a Defaulting Lender under this Agreement will not be required pursuant to be paid or distributed to such Defaulting Lender, but will instead Section 2.7 shall be applied at such time or times as may be determined by the Administrative Agent as follows: (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent Agents under this Agreementthe Loan Documents; (ii) second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the applicable LC Issuer; (iii) third, to Cash Collateralize the LC Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.2.10 (and any Cash Collateral provided by Borrower for this purpose pursuant to Section 2.2.10(b) shall be refunded to Borrower on a dollar for dollar basis); (iv) fourth, as the Borrower may request (so long as no Default or Event of Default exists) to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and third(v) fifth, if so determined by the Administrative Agent and the BorrowersBorrower, to be held in an a deposit account as cash collateral for and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations of with respect to Loans under this Agreement and (y) Cash Collateralize the LC Issuers’ future Fronting Exposure with respect to such Defaulting Lender in with respect to future Letters of any Loan advances Credit issued under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain , in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied by the Administrative Agent to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunderaccordance with Section 2.2.10; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth(vi) sixth, to the payment of any amounts owing to the Lenders or the Swing Line Lender LC Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line Lender an applicable LC Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth(vii) seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers Borrower as a result of any then final and non-appealable judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth(viii) eighth, to pay amounts owing under this Agreement to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction may otherwise direct; (provided that that, with respect to this clause (viii), if such payment is a prepayment of the principal amount of any amounts held as cash collateral for funding obligations Loans in respect of which a Defaulting Lender has funded its participation obligations, such payment shall be returned applied solely to prepay the Loans of all Non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans owed to such Defaulting Lender upon the termination of this Agreement and the satisfaction of such Defaulting Lender’s obligations hereunder). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral Cash Collateral pursuant to this Section 10.17 2.7.6 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(e) All or any part of such Defaulting Lender’s participation in LC Exposure shall be reallocated among the Non-Defaulting Lenders of the same Class as such Defaulting Lender in accordance with their respective Proportionate Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause the aggregate LC Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Xxxxxx’s DSR Loan Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Xxxxxx having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Xxxxxx’s increased exposure following such reallocation.
(f) If the Administrative Agent and each applicable LC Issuer agree in writing, based on the cure of the applicable basis of default, that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit to be held pro rata by the Lenders in accordance with the Commitments under the applicable Class (without giving effect to Section 2.7.6(e)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Xxxxxx was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Xxxxxx’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lender Provisions. Notwithstanding anything to the contrary in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law,
(a) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity or otherwise) from the Borrowers for the account of a Defaulting Lender under this Agreement will not be required to be paid or distributed to such Defaulting Lender, but will instead be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreement; second, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and third, if so determined by the Administrative Agent and the Borrowers, held in an account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loan advances under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied by the Administrative Agent to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, to the payment of any amounts owing to the Lenders or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct; provided that any amounts held as cash collateral for funding obligations of a Defaulting Lender shall be returned to such Defaulting Lender upon the termination of this Agreement and the satisfaction of such Defaulting Lender’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay NAI-1513461614v2 amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 10.17 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
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Defaulting Lender Provisions. Notwithstanding anything to If any Letter of Credit is outstanding at the contrary in this Agreement, if time any Lender becomes a Defaulting Lender, then, until the Borrower shall within one Euro-Dollar Business Day following notice by the Administrative Agent cash collateralize such time Defaulting Lender’s Pro Rata Share of the L/C Obligations in accordance with the procedures set forth in Section 2.16(g) for so long as such Lender is no longer a Defaulting LenderL/C Obligations are outstanding; provided, that, at the Borrower’s option, to the extent permitted (A) the conditions set forth in Section 3.03 are satisfied at such time and (B) the total Revolving Outstandings (other than any Revolver Outstandings constituting outstanding Revolver Loans made by applicable law,
any Defaulting Lender but including each Defaulting Lender’s L/C Advance) does not exceed the total Revolver Commitment (a) Any payment of principal, interest, fees or other amounts received by excluding the Administrative Agent for the account Revolver Commitment of any Defaulting Lender under this Agreement except to the extent of any outstanding Revolver Loans of such Defaulting Lender), the Borrower may, by notice to the Administrative Agent and the Lenders, elect to reallocate the L/C Obligations among all non-Defaulting Lenders (whether voluntary or mandatoryincluding for purposes of Section 2.07 and Section 2.16(i)) by disregarding the Revolver Commitments of all Defaulting Lenders for purposes of calculating each non-Defaulting Lender’s Pro Rata Share of the L/C Obligations (in which case, at maturity or otherwise) from the Borrowers for Pro Rata Share of the account L/C Obligations of a each Defaulting Lender under this Agreement will shall be deemed to be zero), provided that, following such reallocation, the total Revolving Outstandings of any non-Defaulting Lender shall not exceed such non-Defaulting Lender’s total Revolver Commitment, and to the extent the Borrower elects to require such reallocation in accordance with the foregoing, such Defaulting Lender’s Pro Rata Share of the L/C Obligations shall not be required to be paid or distributed to such Defaulting Lender, but will instead be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreement; second, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and third, if so determined by the Administrative Agent and the Borrowers, held in an account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loan advances under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied by the Administrative Agent to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, to the payment of any amounts owing to the Lenders or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct; provided that any amounts held as cash collateral for funding obligations of a Defaulting Lender shall be returned to such Defaulting Lender upon the termination of this Agreement and the satisfaction of such Defaulting Lender’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral collateralized pursuant to this Section 10.17 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto2.16(l)(i).
Appears in 1 contract
Samples: Credit Agreement (Qwest Communications International Inc)
Defaulting Lender Provisions. (a) Notwithstanding anything to the contrary in this Agreement, if any a Lender becomes becomes, and during the period it remains, a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law,following provisions shall apply:
(ai) Any Borrower shall not be required to pay any fees to such Defaulting Lender under Section 2.05(a); and
(ii) any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any such Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity maturity, pursuant to Article XI or otherwise) or received by Administrative Agent from the Borrowers for the account of a Defaulting Lender under this Agreement will not be required pursuant to be paid or distributed to such Defaulting Lender, but will instead Section 4.07 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreementhereunder; second, as Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and third, if so determined by the Administrative Agent and the Borrowers, held in an account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loan advances under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied by the Administrative Agent to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, to the payment of any amounts owing to the Lenders or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifthfourth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixthfifth, to pay amounts owing under this Agreement to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction may otherwise directjurisdiction; provided that if (x) such payment is a payment of the principal amount of any amounts held as cash collateral for funding obligations Loans in respect of a Defaulting Lender shall be returned to which such Defaulting Lender upon has not fully funded its appropriate share, and (y) such Loans were made at a time when the termination conditions set forth in Section 7.01 were satisfied or waived, such payment shall be applied solely to pay the Loans of this Agreement and all Non-Defaulting Lenders on a pro rata basis prior to being applied to the satisfaction payment of any Loans of such Defaulting Lender’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 10.17 2.14(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 1 contract
Samples: Credit Agreement (Wynn Resorts LTD)
Defaulting Lender Provisions. Notwithstanding anything (a) In addition to the contrary in this Agreementother conditions precedent herein set forth, if any Lender becomes becomes, and during the period it remains, a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law,
(a) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity or otherwise) from the Borrowers for the account of a Defaulting Lender under this Agreement Issuing Bank will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, and the Swingline Lender will not be paid required to make any Swingline Loan, unless (i) the Borrower provides Cash Collateral to the Issuing Bank or distributed the Swingline Lender, as the case may be, in an amount equal to the aggregate amount of the funding obligations (contingent or otherwise) of such Defaulting Lender in respect thereof or (ii) the Issuing Bank or the Swingline Lender, as the case may be, is otherwise satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuing Bank or Swingline Lender.
(b) If any Lender becomes, and during the period it remains, a Defaulting Lender, if any Letter of Credit or Swingline Loan is at the time outstanding, the Issuing Bank and the Swingline Lender, as the case may be, may, by notice to the Borrower and such Defaulting Lender through the Administrative Agent, require the Borrower to Cash Collateralize the obligations of the Borrower to the Issuing Bank and the Swingline Lender in respect of such Letter of Credit or Swingline Loan in an amount equal to the aggregate amount of the funding obligations (contingent or otherwise) of such Defaulting Lender in respect thereof, unless the Borrower has made other arrangements satisfactory to the Administrative Agent, and to the Issuing Bank and the Swingline Lender, as the case may be, in their reasonable discretion to protect them against the risk of non-payment by such Defaulting Lender.
(c) In furtherance of the foregoing, but will instead be applied at if any Lender becomes, and during the period it remains, a Defaulting Lender, if the Borrower has failed to provide Cash Collateral in accordance with this Section 2.23, each of the Issuing Bank and the Swingline Lender is hereby authorized by the Borrower (which authorization is irrevocable and coupled with an interest) to give, in its discretion, through the Administrative Agent, Borrowing Requests pursuant to Section 2.02 in such time or amounts and in such times as may be determined by required to Cash Collateralize the Administrative Agent as follows: first, to obligations of the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreement; second, to the funding of any Loan advance Borrower in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and third, if so determined by the Administrative Agent and the Borrowers, held outstanding Letters of Credit or Swingline Loans in an account as cash collateral for future funding obligations amount at least equal to the aggregate amount of the obligations (contingent or otherwise) of such Defaulting Lender in respect of such Letter of Credit or Swingline Loan.
(d) If the Borrower, the Administrative Agent, the Issuing Bank and the Swingline Lender agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any Loan advances under this Agreement. If conditions set forth therein, such Lender is still will cease to be a Defaulting Lender and any amounts remain in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied a Non-Defaulting Lender; provided that, except to the extent otherwise expressly agreed by the Administrative Agent to the making of payments in the following order of priority: firstaffected parties, to the payment of any amounts owing by such no change hereunder from Defaulting Lender to the Administrative Agent hereunder; second, with respect to the Revolving Facility, to the payment Non-Defaulting Lender will constitute a waiver or release of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding claim of any Loan advance in respect of which party hereunder arising from such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, to the payment of any amounts owing to the Lenders or the Swing Line Lender as Lender’s having been a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct; provided that any amounts held as cash collateral for funding obligations of a Defaulting Lender shall be returned to such Defaulting Lender upon the termination of this Agreement and the satisfaction of such Defaulting Lender’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 10.17 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.”.
Appears in 1 contract
Samples: Credit Agreement (Polymer Group Inc)
Defaulting Lender Provisions. Notwithstanding anything any provision of this Agreement to the contrary in this Agreementcontrary, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, then the following provisions shall apply to the extent permitted by applicable law,law for so long as such Lender is a Defaulting Lender:
(a) Fees shall cease to accrue on the unused portion of the Commitment of such Defaulting Lender pursuant to Section 2.4 and Section 2.5 for any period during which such Lender is a Defaulting Lender (without prejudice to the rights of the Lenders other than Defaulting Lenders in respect of such fees); provided, however, that each Defaulting Lender shall be entitled to receive LC Fees for any period during which such Lender is a Defaulting Lender only to the extent allocable to its Proportionate Share of the Drawing Amounts of the Letters of Credit for which it has provided Cash Collateral.
(b) With respect to any Commitment Fee or LC Fee not required to be paid to any Defaulting Lender pursuant to clause (a) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in LC Exposure that has been reallocated to such Non-Defaulting Lender pursuant to Section 2.7.6(e) below, (y) pay to each LC Issuer the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such LC Issuer’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(c) Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 10.3 and the definition of “Required Lenders”.
(d) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any such Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity maturity, pursuant to Section 6.2 or otherwise) or received by the Administrative Agent from the Borrowers for the account of a Defaulting Lender under this Agreement will not be required pursuant to be paid or distributed to such Defaulting Lender, but will instead Section 2.7 shall be applied at such time or times as may be determined by the Administrative Agent as follows: (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent Agents under this Agreementthe Loan Documents; (ii) second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the applicable LC Issuer; (iii) third, to Cash Collateralize the LC Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.2.10 (and any Cash Collateral provided by Borrower for this purpose pursuant to Section 2.2.10(b) shall be refunded to Borrower on a dollar for dollar basis); (iv) fourth, as the Borrower may request (so long as no Default or Event of Default exists) to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and third(v) fifth, if so determined by the Administrative Agent and the BorrowersBorrower, to be held in an a deposit account as cash collateral for and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations of with respect to Loans under this Agreement and (y) Cash Collateralize the LC Issuers’ future Fronting Exposure with respect to such Defaulting Lender in with respect to future Letters of any Loan advances Credit issued under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain , in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied by the Administrative Agent to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunderaccordance with Section 2.2.10; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth(vi) sixth, to the payment of any amounts owing to the Lenders or the Swing Line Lender LC Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line Lender an applicable LC Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth(vii) seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers Borrower as a result of any then final and non-appealable judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth(viii) eighth, to pay amounts owing under this Agreement to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction may otherwise direct; (provided that that, with respect to this clause (viii), if such payment is a prepayment of the principal amount of any amounts held as cash collateral for funding obligations Loans in respect of which a Defaulting Lender has funded its participation obligations, such payment shall be returned applied solely to prepay the Loans of all Non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans owed to such Defaulting Lender upon the termination of this Agreement and the satisfaction of such Defaulting Lender’s obligations hereunder). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral Cash Collateral pursuant to this Section 10.17 2.7.6 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(e) All or any part of such Defaulting Lender’s participation in LC Exposure shall be reallocated among the Non-Defaulting Lenders of the same Class as such Defaulting Lender in accordance with their respective Proportionate Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause the aggregate LC Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s DSRRevolving Loan Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Xxxxxx having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Xxxxxx’s increased exposure following such reallocation.
(f) If the Administrative Agent and each applicable LC Issuer agree in writing, based on the cure of the applicable basis of default, that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit to be held pro rata by the Lenders in accordance with the Commitments under the applicable Class (without giving effect to Section 2.7.6(e)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Xxxxxx’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lender Provisions. (a) Notwithstanding anything to the contrary in this Agreement, if any a Lender becomes, and during the period it remains, a Defaulting Lender, the following provisions shall apply:
(i) the L/C Liabilities of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a ) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Commitments; provided that (i) the sum of each Non-Defaulting Lender’s total Revolving Exposure may not in any event exceed the Revolving Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation, (ii) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim Borrower, Administrative Agent, any L/C Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender and (iii) no Event of Default shall exist and be continuing at the time of such reallocation (and, unless Borrower shall have otherwise notified the Administrative Agent at such time, Xxxxxxxx shall be deemed to have represented and warranted that no Event of Default exists and is continuing at such time);
(ii) to the extent permitted that any portion (the “un-reallocated portion”) of the Defaulting Lender’s L/C Liabilities cannot be so reallocated, whether by applicable law,
reason of the first proviso in clause (a) Any above or otherwise, Borrower will, not later than three (3) Business Days after demand by Administrative Agent (at the direction of any L/C Lender), (i) Cash Collateralize the obligations of Borrower to the L/C Lender in respect of such L/C Liabilities, in an amount at least equal to the aggregate amount of the un-reallocated portion of such L/C Liabilities, or (ii) make other arrangements satisfactory to Administrative Agent, and to the applicable L/C Lender, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender;
(iii) Borrower shall not be required to pay any fees to such Defaulting Lender under Section 2.05(a); and
(iv) any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any such Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity maturity, pursuant to Article 11 or otherwise) or received by Administrative Agent from the Borrowers for the account of a Defaulting Lender under this Agreement will not be required pursuant to be paid or distributed to such Defaulting Lender, but will instead Section 4.07 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreementhereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any L/C Lender hereunder; third, if so determined by Administrative Agent or requested by the applicable L/C Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Letter of Credit; fourth, as Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and thirdfifth, if so determined by the Administrative Agent and the BorrowersBorrower, to be held in an a non-interest bearing deposit account as cash collateral for and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations of the Defaulting Lender in with respect of any Loan advances to Loans under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied by the Administrative Agent to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourthsixth, to the payment of any amounts owing to the Lenders or the Swing Line L/C Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line any L/C Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifthseventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s 's breach of its obligations under this Agreement; and sixtheighth, to pay amounts owing under this Agreement to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction may otherwise directjurisdiction; provided that if (x) such payment is a payment of the principal amount of any amounts held as cash collateral for funding obligations Loans or L/C Liabilities in respect of a Defaulting Lender shall be returned to which such Defaulting Lender upon has not fully funded its appropriate share, and (y) such Loans were made or the termination related Letters of this Agreement Credit were issued at a time when the conditions set forth in Section 7.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Liabilities owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the satisfaction payment of any Loans of, or L/C Liabilities owed to, such Defaulting Lender’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral Cash Collateral pursuant to this Section 10.17 2.14(a)(iv) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 1 contract
Samples: Credit Agreement
Defaulting Lender Provisions. (a) Notwithstanding anything to the contrary in this Agreement, if any a Lender becomes, and during the period it remains, a Defaulting Lender, the following provisions shall apply: (i) the L/C Liabilities of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a ) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Commitments; provided that (i) the sum of each Non-Defaulting Lender’s total Revolving Exposure may not in any event exceed the Revolving Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation, to the extent permitted (ii) neither such reallocation nor any payment by applicable law,
(a) Any payment of principal, interest, fees a Non-Defaulting Lender pursuant thereto will constitute a waiver or other amounts received by the Administrative Agent for the account release of any claim Borrower, Administrative Agent, any L/C Lender or any other Lender may have against such Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity or otherwise) from the Borrowers for the account of a Defaulting Lender under this Agreement will not be required to be paid or distributed to such Defaulting Lender, but will instead be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by cause such Defaulting Lender to be a Non- Defaulting Lender and (iii) no Event of Default shall exist and be continuing at the time of such reallocation (and, unless Borrower shall have otherwise notified the Administrative Agent under this Agreementat such time, Borrower shall be deemed to have represented and warranted that no Event of Default exists and is continuing at such time); second, (ii) to the funding of extent that any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by (the Administrative Agent; and third, if so determined by the Administrative Agent and the Borrowers, held in an account as cash collateral for future funding obligations “un-reallocated portion”) of the Defaulting Lender’s L/C Liabilities cannot be so reallocated, whether by reason of the first proviso in clause (a) above or otherwise, Borrower will, not later than three (3) Business Days after demand by Administrative Agent (at the direction of any L/C Lender), (i) Cash Collateralize the obligations of Borrower to the L/C Lender in respect of any Loan advances under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain L/C Liabilities, in such account on an amount at least equal to the date that the Loan commitments are terminated and all payment obligations aggregate amount of the Borrowers hereunder are paid in fullun-reallocated portion of such L/C Liabilities, then such amounts will be applied by the or (ii) make other arrangements satisfactory to Administrative Agent Agent, and to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreementapplicable L/C Lender, as determined by the Administrative Agent; fourthcase may be, in their sole discretion to protect them against the risk of non-payment of any amounts owing to the Lenders or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct; provided that any amounts held as cash collateral for funding obligations of a Defaulting Lender shall be returned to such Defaulting Lender upon the termination of this Agreement and the satisfaction of such Defaulting Lender’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 10.17 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.;
Appears in 1 contract
Samples: Credit Agreement (Wynn Resorts LTD)
Defaulting Lender Provisions. (a) Notwithstanding anything to the contrary in this Agreement, if any a Lender becomes, and during the period it remains, a Defaulting Lender, the following provisions shall apply:
(i) the L/C Liabilities and the participations in outstanding Swingline Loans of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender, then, until ) among the Non-Defaulting Lenders under the applicable Tranche of Revolving Commitments pro rata in accordance with their respective Revolving Commitments of such time as such Lender is no longer a Tranche; provided that (i) the sum of each Non-Defaulting Lender’s total Revolving Exposure under the applicable Tranche may not in any event exceed the Revolving Commitment under such Tranche of such Non-Defaulting Lender as in effect at the time of such reallocation, (ii) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim Borrower, Administrative Agent, any L/C Lender, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender and (iii) the conditions set forth in Section 7.02(a) are satisfied at the time of such reallocation (and, unless Borrower shall have otherwise notified Administrative Agent at such time, Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time);
(ii) to the extent permitted that any portion (the “un-reallocated portion”) of the Defaulting Lender’s L/C Liabilities and participations in outstanding Swingline Loans cannot be so reallocated, whether by applicable law,
reason of the first proviso in clause (a) Any above or otherwise, Borrower will, not later than three (3) Business Days after demand by Administrative Agent (at the direction of any L/C Lender and/or the Swingline Lender, as the case may be), (i) Cash Collateralize the obligations of Borrower to the L/C Lender and the Swingline Lender in respect of such L/C Liabilities or participations in outstanding Swingline Loans, as the case may be, in an amount at least equal to the aggregate amount of the un-reallocated portion of such L/C Liabilities or participations in any outstanding Swingline Loans, or (ii) in the case of such participations in any outstanding Swingline Loans, prepay (subject to clause (c) below) and/or Cash Collateralize in full the un-reallocated portion thereof, or (iii) make other arrangements satisfactory to Administrative Agent, and to the applicable L/C Lender and the Swingline Lender, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender;
(iii) Borrower shall not be required to pay any fees to such Defaulting Lender under Section 2.05(a); and
(iv) any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any such Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity maturity, pursuant to Article XI or otherwise) or received by Administrative Agent from the Borrowers for the account of a Defaulting Lender under this Agreement will not be required pursuant to be paid or distributed to such Defaulting Lender, but will instead Section 4.07 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreementhereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any L/C Lender or Swingline Lender hereunder; third, if so determined by Administrative Agent or requested by the applicable L/C Lender or Swingline Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Letter of Credit or any Swingline Loan, as applicable; fourth, as Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and thirdfifth, if so determined by the Administrative Agent and the BorrowersBorrower, to be held in an a non-interest bearing deposit account as cash collateral for and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations of the Defaulting Lender in with respect of any Loan advances to Loans under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied by the Administrative Agent to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourthsixth, to the payment of any amounts owing to the Lenders, the L/C Lender or Swingline Lenders or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any L/C Lender or the Swing Line Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifthseventh, so long as no Default or Event of Default is continuing, to the payment of any amounts owing to the Borrowers Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixtheighth, to pay amounts owing under this Agreement to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction may otherwise directjurisdiction; provided that if (x) such payment is a payment of the principal amount of any amounts held as cash collateral for funding obligations Loans or L/C Liabilities in respect of a Defaulting Lender shall be returned to which such Defaulting Lender upon has not fully funded its appropriate share, and (y) such Loans were made or the termination related Letters of this Agreement Credit were issued at a time when the conditions set forth in Section 7.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Liabilities owed to, all Non-Defaulting Lenders of the satisfaction applicable Tranche on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Liabilities owed to, such Defaulting Lender’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral Cash Collateral pursuant to this Section 10.17 2.14(a)(iv) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 1 contract
Samples: Credit Agreement (Boyd Gaming Corp)
Defaulting Lender Provisions. Notwithstanding anything to the contrary in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law,
(a) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity or otherwise) from the Borrowers for the account of a Defaulting Lender under this Agreement will not be required to be paid or distributed to such Defaulting Lender, but will instead be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreement; second, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and third, if so determined by the Administrative Agent and the Borrowers, held in an account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loan advances under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied by the Administrative Agent to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, to the payment of any amounts owing to the Lenders or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct; provided that any amounts held as cash collateral for funding obligations of a Defaulting Lender shall be returned to such Defaulting Lender upon the termination of this Agreement and the satisfaction of such Defaulting Lender’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 10.17 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(b) No Commitment Amount of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 10.17, performance by the Borrowers of their obligations shall not be excused or otherwise modified as a result of the operation of this Section 10.17. The rights and remedies against a Defaulting Lender under this Section 10.17 are in addition to any other rights and remedies which the Borrowers, the Administrative Agent or any Lender (including the Swing Line Lender) may have against such Defaulting Lender.
(c) In the case of a Defaulting Lender that is a Revolving Facility Lender, all or any part of such Defaulting Lender’s participation in Swing Line Loan advances shall be reallocated among the Non-Defaulting Lenders under the Revolving Facility in accordance with their respective Percentages (calculated without regard to such Defaulting Lender’s Revolving Facility Commitment Amount) but only to the extent that (x) no default or Event of Default exists at the time of such reallocation (and, unless the Borrowers shall have otherwise notified the Administrative Agent at such time, the Borrowers shall be deemed to have represented and warranted that such condition is satisfied at such time), and (y) such reallocated participation does not, as to any Revolving Facility Lender, exceed such Lender’s unused Revolving Facility Commitment Amount. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(d) If the reallocation described in clause (c) above cannot, or can only partially, be effected, the Borrowers shall, without prejudice to any right or remedy available to it hereunder or under law, prepay Swing Line Facility advances in an amount equal to the amount of the participation of the Defaulting Lenders. If the Borrowers and the Administrative Agent agree in writing in their reasonable determination that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the applicable parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the extent applicable, purchase that portion of outstanding advances of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the advances to be funded and held on a pro rata basis by the Lenders in accordance with their Percentages of the applicable Facility or Facilities, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender. So long as any Revolving Facility Lender is a Defaulting Lender, no Swing Line Lender shall be required to fund any Swing Line Loan advances unless the participations of Defaulting Lenders in such Swing Line Loan advances have been fully reallocated in accordance with Section 10.17(c).
Appears in 1 contract
Defaulting Lender Provisions. (a) Notwithstanding anything to the contrary in this Agreement, if any a Lender becomes becomes, and during the period it remains, a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law,following provisions shall apply:
(ai) Any [Intentionally omitted];
(ii) [Intentionally omitted];
(iii) Borrower shall not be required to pay any fees to such Defaulting Lender under Section 2.05(a); and
(iv) any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any such Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity maturity, pursuant to Article 11 or otherwise) or received by Administrative Agent from the Borrowers for the account of a Defaulting Lender under this Agreement will not be required pursuant to be paid or distributed to such Defaulting Lender, but will instead Section 4.07 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreementhereunder; second, as Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and third, if so determined by the Administrative Agent and the Borrowers, held in an account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loan advances under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied by the Administrative Agent to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, to the payment of any amounts owing to the Lenders or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifthfourth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s 's breach of its obligations under this Agreement; and sixthfifth, to pay amounts owing under this Agreement to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction may otherwise directjurisdiction; provided that if (x) such payment is a payment of the principal amount of any amounts held as cash collateral for funding obligations Loans in respect of a Defaulting Lender shall be returned to which such Defaulting Lender upon has not fully funded its appropriate share, and (y) such Loans were made at a time when the termination conditions set forth in Section 7.01 were satisfied or waived, such payment shall be applied solely to pay the Loans of this Agreement and all Non-Defaulting Lenders on a pro rata basis prior to being applied to the satisfaction payment of any Loans of such Defaulting Lender’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 10.17 2.14(a)(iv) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 1 contract
Samples: Credit Agreement (Wynn Resorts LTD)
Defaulting Lender Provisions. (a) Notwithstanding anything to the contrary in this Agreement, if any a Lender becomes, and during the period it remains, a Defaulting Lender, the following provisions shall apply:
(i) the L/C Liabilities of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a ) among the Non-Defaulting Lenders pro rata in accordance with their respective Revolving Commitments; provided that (i) the sum of each Non-Defaulting Lender’s total Revolving Exposure may not in any event exceed the Revolving Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation, (ii) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim Borrower, Administrative Agent, any L/C Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender and (iii) no Event of Default shall exist and be continuing at the time of such reallocation (and, unless Borrower shall have otherwise notified Administrative Agent at such time, Borrower shall be deemed to have represented and warranted that no Event of Default exists and is continuing at such time);
(ii) to the extent permitted that any portion (the “un-reallocated portion”) of the Defaulting Lender’s L/C Liabilities cannot be so reallocated, whether by applicable law,
reason of the first proviso in clause (a) Any above or otherwise, Borrower will, not later than three (3) Business Days after demand by Administrative Agent (at the direction of any L/C Lender), (i) Cash Collateralize the obligations of Borrower to the L/C Lender in respect of such L/C Liabilities, in an amount at least equal to the aggregate amount of the un-reallocated portion of such L/C Liabilities, or (ii) make other arrangements satisfactory to Administrative Agent, and to the applicable L/C Lender, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender;
(iii) Borrower shall not be required to pay any fees to such Defaulting Lender under Section 2.05(a); and
(iv) any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any such Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity maturity, pursuant to Article 11 or otherwise) or received by Administrative Agent from the Borrowers for the account of a Defaulting Lender under this Agreement will not be required pursuant to be paid or distributed to such Defaulting Lender, but will instead Section 4.07 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreementhereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any L/C Lender hereunder; third, if so determined by Administrative Agent or requested by the applicable L/C Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Letter of Credit; fourth, as Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and thirdfifth, if so determined by the Administrative Agent and the BorrowersBorrower, to be held in an a non-interest bearing deposit account as cash collateral for and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations of the Defaulting Lender in with respect of any Loan advances to Loans under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied by the Administrative Agent to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourthsixth, to the payment of any amounts owing to the Lenders or the Swing Line L/C Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line any L/ C Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifthseventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s 's breach of its obligations under this Agreement; and sixtheighth, to pay amounts owing under this Agreement to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction may otherwise directjurisdiction; provided that if (x) such payment is a payment of the principal amount of any amounts held as cash collateral for funding obligations Loans or L/C Liabilities in respect of a Defaulting Lender shall be returned to which such Defaulting Lender upon has not fully funded its appropriate share, and (y) such Loans were made or the termination related Letters of this Agreement Credit were issued at a time when the conditions set forth in Section 7.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Liabilities owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the satisfaction payment of any Loans of, or L/C Liabilities owed to, such Defaulting Lender’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral Cash Collateral pursuant to this Section 10.17 2.14(a)(iv) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 1 contract
Samples: Credit Agreement (Wynn Resorts LTD)
Defaulting Lender Provisions. Notwithstanding anything any provision of this Agreement to the contrary in this Agreementcontrary, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, then the following provisions shall apply to the extent permitted by applicable law,law for so long as such Lender is a Defaulting Lender:
(g) Fees shall cease to accrue on the unused portion of the Commitment of such Defaulting Lender pursuant to Section 2.3 and Section 2.4 for any period during which such Lender is a Defaulting Lender (without prejudice to the rights of the Lenders other than Defaulting Lenders in respect of such fees); provided, however, that each Defaulting Lender shall be entitled to receive LC Fees for any period during which such Lender is a Defaulting Lender only to the extent allocable to its Proportionate Share of the Drawing Amounts of the Letters of Credit for which it has provided Cash Collateral.
(h) With respect to any Commitment Fee or LC Fee not required to be paid to any Defaulting Lender pursuant to clause (a) above, the Borrower shall (x) pay to each Non- KE 84627654 Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in LC Exposure that has been reallocated to such Non-Defaulting Lender pursuant to Section 2.6.6(e) below, (y) pay to each LC Issuer the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such LC Issuer’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(i) Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 10.3 and the definition of “Required Lenders”.
(j) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any such Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity maturity, pursuant to Section 6.2 or otherwise) or received by the Administrative Agent from the Borrowers for the account of a Defaulting Lender under this Agreement will not be required pursuant to be paid or distributed to such Defaulting Lender, but will instead Section 2.6 shall be applied at such time or times as may be determined by the Administrative Agent as follows: (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent Agents under this Agreementthe Loan Documents; (ii) second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the applicable LC Issuer; (iii) third, to Cash Collateralize the LC Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.2.10 (and any Cash Collateral provided by Borrower for this purpose pursuant to Section 2.2.10(b) shall be refunded to Borrower on a dollar for dollar basis); (iv) fourth, as the Borrower may request (so long as no Default or Event of Default exists) to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and third(v) fifth, if so determined by the Administrative Agent and the BorrowersBorrower, to be held in an a deposit account as cash collateral for and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations of with respect to Loans under this Agreement and (y) Cash Collateralize the LC Issuers’ future Fronting Exposure with respect to such Defaulting Lender in with respect to future Letters of any Loan advances Credit issued under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain , in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied by the Administrative Agent to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunderaccordance with Section 2.2.10; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth(vi) sixth, to the payment of any amounts owing to the Lenders or the Swing Line Lender LC Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line Lender an applicable LC Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth(vii) seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers Borrower as a result of any then final and non-appealable judgment of a court of competent jurisdiction obtained by the Borrowers Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth(viii) eighth, to pay amounts owing under this Agreement to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction may otherwise direct; (provided that that, with respect to this clause (viii), if such payment is a prepayment of the principal amount of any amounts held as cash collateral for funding obligations Loans in respect of which a Defaulting Lender has funded its participation obligations, such payment shall be returned applied solely to prepay the Loans of all Non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans owed to such Defaulting Lender upon the termination of this Agreement and the satisfaction of such Defaulting Lender’s obligations hereunder). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral Cash Collateral pursuant to this Section 10.17 2.6.6 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(k) All or any part of such Defaulting Lender’s participation in LC Exposure shall be reallocated among the Non-Defaulting Lenders of the same Class as such Defaulting Lender in accordance with their respective Proportionate Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause the aggregate LC Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s DSR Loan Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having KE 84627654 become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(l) If the Administrative Agent and each applicable LC Issuer agree in writing, based on the cure of the applicable basis of default, that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit to be held pro rata by the Lenders in accordance with the Commitments under the applicable Class (without giving effect to Section 2.6.6(e)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lender Provisions. Notwithstanding anything any provision of this Agreement to the contrary in this Agreementcontrary, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, then the following provisions shall apply to the extent permitted by applicable law,law for so long as such Lender is a Defaulting Lender:
(a) Fees shall cease to accrue on the unused portion of the Commitment of such Defaulting Lender pursuant to Section 2.3 for any period during which such Lender is a Defaulting Lender (without prejudice to the rights of the Lenders other than Defaulting Lenders in respect of such fees).
(b) [Reserved].
(c) [Reserved].
(d) Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 9.9 and the definition of “Required Lenders”.
(e) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any such Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity maturity, pursuant to Section 7.2 or otherwise) or received by the Administrative Agent from the Borrowers for the account of a Defaulting Lender under this Agreement will not be required pursuant to be paid or distributed to such Defaulting Lender, but will instead Section 2.6 shall be applied at such time or times as may be determined by the Administrative Agent as follows: (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent Agents under this Agreementthe Credit Documents; (ii) second, as Co-Borrowers may request (so long as no Default or Event of Default exists), to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and (iii) third, if so determined by the Administrative Agent and the Co-Borrowers, to be held in an a deposit account as cash collateral for and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations of the Defaulting Lender in with respect of any Loan advances to Loans under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied by the Administrative Agent to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; (iv) fourth, to the payment of any amounts owing to the Lenders or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; (v) fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Co-Borrowers as a result of any then final and non-appealable judgment of a court of competent jurisdiction obtained by the Co-Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and (vi) sixth, to pay amounts owing under this Agreement to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction may otherwise direct; (provided that that, with respect to this clause (vi), if such payment is a prepayment of the principal amount of any amounts held as cash collateral for funding obligations Loans in respect of which a Defaulting Lender has funded its participation obligations, such payment shall be returned applied solely to prepay the Loans of all Non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans owed to such Defaulting Lender upon the termination of this Agreement and the satisfaction of such Defaulting Lender’s obligations hereunder). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 10.17 2.6.7 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(f) [Reserved].
(g) If Administrative Agent agrees in writing that a Lender is no longer a Defaulting Lender, Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans to be held pro rata by the Lenders in accordance with the Commitments under the applicable Facility, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Co-Borrowers while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)
Defaulting Lender Provisions. Notwithstanding anything any provision of this Agreement to the contrary in this Agreementcontrary, if any Lender becomes a Defaulting Lender, then, until such time then the following provisions shall apply for so long as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law,:
(a) Any payment fees shall cease to accrue on the unfunded portion of principalthe Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.2(b)) and the Commitment and Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, interest, fees waiver or other amounts received modification pursuant to Section 9.2) or under any other Loan Document; provided, that, except as otherwise provided in Section 9.2, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly and adversely affected thereby;
(c) if any LC Exposure or Swingline Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the conditions set forth in Section 4.2 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time) and (y) the sum of all Non-Defaulting Lenders’ Exposures plus such Defaulting Lender’s LC Exposure plus such Defaulting Lender’s Swingline Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (y) second, Cash Collateralize, for the account benefit of any Defaulting Lender under this Agreement (whether voluntary or mandatorythe applicable Issuing Lender, at maturity or otherwise) from the Borrowers for the account of a Defaulting Lender under this Agreement will not be required to be paid or distributed Borrower’s obligations corresponding to such Defaulting Lender, but will instead be applied at ’s applicable LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.6(j) for so long as such time LC Exposure or times as may be determined by is outstanding;
(iii) if the Administrative Agent as follows: first, to the payment of Borrower Cash Collateralizes any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreement; second, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and third, if so determined by the Administrative Agent and the Borrowers, held in an account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loan advances under this Agreement. If such Lender is still a Defaulting Lender and any amounts remain in such account on the date that the Loan commitments are terminated and all payment obligations of the Borrowers hereunder are paid in full, then such amounts will be applied by the Administrative Agent to the making of payments in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, with respect to the Revolving Facility, to the payment of any amounts owing by such Defaulting Lender to the Swing Line Lender hereunder; third, to the funding of any Loan advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, to the payment of any amounts owing to the Lenders or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifthLC Exposure pursuant to clause (ii) above, the Borrower shall not be required to the payment of pay any amounts owing fees to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result pursuant to Section 2.12(b) with respect to such Defaulting Lender’s applicable LC Exposure during the period such Defaulting Lender’s applicable LC Exposure is Cash Collateralized;
(iv) if the LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s breach LC Exposure is neither reallocated nor Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of its obligations under this Agreement; and sixth, to pay amounts owing under this Agreement to such Defaulting any Issuing Lender or as a court any other Lender hereunder, all letter of competent jurisdiction may otherwise direct; provided that any amounts held as cash collateral for funding obligations of a Defaulting Lender shall be returned credit fees payable under Section 2.12(b) with respect to such Defaulting Lender upon the termination of this Agreement and the satisfaction of such Defaulting Lender’s obligations hereunder. Any payments, prepayments or other amounts paid or LC Exposure shall be payable to the applicable Issuing Lender until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
(vi) so long as any Lender is a Defaulting Lender, no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related LC Exposure related to any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein) and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c)(ii).
(d) If (i) a Bankruptcy Event or a Bail-In Action with respect to the parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) an Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Lender shall not be required to issue, amend or increase any Letter of Credit unless such Issuing Lender, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Issuing Lender, to defease any risk to it in respect of such Lender hereunder.
(e) In the event that the Administrative Agent, the Borrower, the Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that are applied (or held) caused such Lender to pay amounts owed by be a Defaulting Lender or to post cash collateral pursuant to this Section 10.17 shall be deemed paid to and redirected by such Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Xxxxxx’s Commitment and each on the date of such readjustment such Lender irrevocably consents heretoshall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
