Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender: (a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a); (b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof; (c) if any LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, then: (i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that the sum of all Non-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation; (ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding; (iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized; (iv) if any portion of the LC Exposure of such Defaulting Lender 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 to give effect to such reallocation; and (v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and (d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 3 contracts
Samples: Credit Agreement (Vectrus, Inc.), Credit Agreement (Vectrus, Inc.), Credit Agreement (Vectrus, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees the Commitment Fee shall cease to accrue on the unfunded portion of the Commitment of such Lender so long as it is a Defaulting Lender (except to the extent such amount is payable to the Issuing Bank pursuant to clause (b)(v) below) and such Defaulting Lender shall not be entitled to receive any Commitment Fee pursuant to Section 2.12(a2.05(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swing Line Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its Lender’s participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline in Swing Line Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages Pro Rata Percentages, but only to the extent that (y) such reallocation does not cause the sum aggregate Revolving Exposure of all Nonany non-Defaulting Revolving Lenders’ Revolving Exposures plus Lender to exceed such non-Defaulting Lender’s Swingline Exposure Revolving Commitment and LC Exposure does (z) to the extent requested in writing by the Administrative Agent, the Borrower shall confirm that the conditions set forth in Section 4.02 are satisfied at the time of such reallocation and if the Borrower cannot exceed confirm such conditions have been satisfied (which shall not constitute a Default or an Event of Default) and such conditions have not otherwise been waived by the sum of all Non-Defaulting Required Revolving Lenders’ Revolving Commitments; provided that no reallocation under this , then clause (iii) below 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocationapply;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent Agent, (Aa) first, prepay the portion such Swing Line Exposure of such Defaulting Lender and (b) cash collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (in each case after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.18(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure is cash collateralized pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) the LC Participation Fee with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure it is cash collateralized;
(iv) if any portion of the such Defaulting Lender’s LC Exposure of such Defaulting Lender is reallocated to the non-Defaulting Lenders pursuant to clause (i) above, then the fees payable LC Participation Fee with respect to the Lenders pursuant to Sections 2.12(a) and 2.12(b) such portion shall be adjusted to give effect to such reallocation; andallocated among the non-Defaulting Lenders in accordance with their Pro Rata Percentages;
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.19(b), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation fees the Commitment Fee that otherwise would have been payable under Section 2.12(bto such Defaulting Lender (with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and the LC Participation Fee payable with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks Bank until such LC Exposure is cash collateralized and/or reallocated;
(vi) so long as any Lender is a Defaulting Lender, the Swing Line Lender shall not be required to fund any Swing Line Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, in each case unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateralized in accordance with this Section 2.19(b), and participations in any such newly issued or increased Letter of Credit or newly made Swing Line Loan shall be allocated among non-Defaulting Lenders in accordance with their respective Pro Rata Percentages (and allocated among them ratably based Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.14(d) but excluding Section 2.16(b)) may, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated non-interest bearing account and, subject to any applicable Requirements of Law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank or Swing Line Lender hereunder, (iii) third, to the funding of any Loan or the funding or cash collateralization of any participation in any Letter of Credit 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, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Borrower, the Issuing Bank, the Swing Line Lender or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Borrower, the Issuing Bank, the Swing Line Lender or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or Reimbursement Obligations in respect of LC Disbursements which a Defaulting Lender has funded in respect of its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and Reimbursement Obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or Reimbursement Obligations owed to, any Defaulting Lender.
(c) such Defaulting Lender shall be deemed not to be a “Lender,” and the amount of such Defaulting Lender’s LC Exposure attributable Revolving Commitment and Revolving Loans and/or Term Loan Commitments and Term Loans and/or Swing Line Commitments and Swing Line Loans shall be excluded, for purposes of voting, and the calculation of voting, on any matters (including the granting of any consents or waivers) with respect to Letters any of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; andLoan Documents, except as otherwise set forth in Section 10.02(b).
(d) to the extent permitted by applicable Requirements of Law, until such time as the Default Excess with respect to such Defaulting Lender shall have been reduced to zero, (A) any voluntary prepayment of the Loans pursuant to Section 2.10(a) shall, if the Borrower so long directs at the time of making such voluntary prepayment, be applied to the Loans of other Lenders in accordance with Section 2.10(a) as if such Defaulting Lender had no Loans outstanding and the Revolving Exposure of such Defaulting Lender is were zero, and (B) any portion of any mandatory prepayment of the Loans pursuant to Section 2.10 that would be applied to the Loans of any Defaulting Lender if such Defaulting Lender had funded all of its defaulted Revolving Loans shall, if the Borrower so directs at the time of making such mandatory prepayment, be (i) applied to the Loans of other Lenders (but not to the Loans of such Defaulting Lender) in accordance with Section 2.10 as if such Defaulting Lender had no Loans outstanding and the Revolving Exposure of such Defaulting Lender were zero or (ii) retained by the Administrative Agent in a segregated non-interest-bearing account.
(e) Subject to Section 10.18, 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, the Swingline Lenders shall not be required to fund including any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter claim of Credit, unless, in each case, it is satisfied that the related exposure and the a non-Defaulting Lender as a result of such non-Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of increased exposure following such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein)reallocation. In the event that the Administrative AgentAgent or the Issuing Bank, Holdingsas the case may be, and the Borrower each agrees in writing (provided that the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees ’s agreement shall not be unreasonably withheld) that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Swing Line Exposure and the LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (except for Swing Line Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Pro Rata Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was . The rights and remedies against a Defaulting Lender under this Section 2.19 are in addition to other rights and remedies that the Borrower, the Administrative Agent, the Issuing Bank, and the non-Defaulting Lenders may have against such Defaulting Lender; provided further that, except as otherwise expressly agreed . The operation of this Section 2.19 shall not be construed to relieve or excuse the performance by the affected parties, no change hereunder from such Defaulting Lender or any other Lender of its duties and obligations hereunder. Any failure by a Defaulting Lender to a Non-Defaulting Revolving Lender will fund amounts that it was obligated to fund hereunder shall constitute a waiver material breach by such Defaulting Lender of this Agreement and shall entitle the Borrower, at its option, to arrange for a substitute Lender to replace such Defaulting Lender pursuant to Section 2.16(b). The arrangements permitted or release of required by this Section 2.19 shall be permitted under this Agreement, notwithstanding any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lenderlimitation on Liens or the pro rata sharing provisions hereof or otherwise.
Appears in 3 contracts
Samples: Credit Agreement (Cvent Holding Corp.), Credit Agreement (Ping Identity Holding Corp.), Credit Agreement (Roaring Fork Holding, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment Commitments, LC Exposure and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.02); , provided that any 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 all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the such Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (A) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided , (B) the conditions set forth in Section 4.02 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 no such conditions are satisfied at such time), and (C) such reallocation under this clause (i) shall constitute a waiver or release does not cause the aggregate Revolving Credit Exposure 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 Revolving Lender as a result of to exceed such Non-Defaulting Revolving Lender’s increased exposure following such reallocationRevolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one five Business Day Days following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks Bank only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections Section 2.12(a) and Section 2.12(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.21(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will or newly made Swingline Loan shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank 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 (the Lender in such case, an “Affected Lender”), the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit to the extent such exposure would have been supported by such Affected Lender, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Affected Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Affected Lender hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each the Swingline Lender and each applicable the Issuing Bank each agrees that a Defaulting Lender or an Affected Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 3 contracts
Samples: Credit Agreement (Tupperware Brands Corp), Credit Agreement (Tupperware Brands Corp), Credit Agreement (Tupperware Brands Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.8(a);
(b) the Revolving Commitment and Revolving Exposure Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.1); provided provided, that any 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 all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any LC Swingline Exposure or L/C Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the such Swingline Exposure referred to in clause (bii) of the definition thereofof such term) and LC L/C Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Revolving Percentages but only to the extent that the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Exposures Extensions of Credit plus such Defaulting Lender’s Swingline Exposure and LC L/C Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks Lender only the portion of Borrowers’ obligations corresponding to such Defaulting Lender’s Dollar LC L/C Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i) 8 for so long as such LC L/C Exposure is outstandingoutstanding for so long as the circumstances giving rise to such obligation to provide such cash collateral remain relevant (which cash collateralization requirement shall be satisfied by the Borrowers depositing such cash collateral into an account opened by the Administrative Agent);
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b3.3(a) with respect to such portion of Defaulting Lender’s L/C Exposure during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC L/C Exposure is cash collateralized;
(iv) if any portion the L/C Exposure of the LC Exposure of such Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.8(a) and 2.12(bSection 3.3(a) shall be adjusted to give effect to in accordance with such reallocationDefaulting Lender’s Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation fees payable under Section 2.12(b3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Lender until and to the extent that such LC L/C Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline L/C Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower Borrowers in accordance with Section 2.20(c2.24(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, renewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.24(c)(i) (and such Defaulting Lender shall not participate therein). If a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the Amendment and Restatement Effective Date and for so long as such event shall continue, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Lender, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdingsthe Parent Borrower, the Borrower, each Swingline Lender and each applicable the Issuing Bank Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, L/C Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment Commitment, and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Revolving Percentage; provided that no adjustments will be made retroactively , in accordance with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lenderits ratable share thereof.
Appears in 3 contracts
Samples: Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(ai) commitment fees Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);3.05.
(bii) The Commitment and the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders or the Required Lenders or any other requisite Lenders Lenders, as applicable, have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.0212.02); provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all each affected Lender which affects such Defaulting Lender differently than other affected Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereof;Lender.
(ciii) if any LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(iA) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages (for the purposes of such reallocation the Defaulting Lender’s Commitment shall be disregarded in determining the Non-Defaulting Lender’s Applicable Percentage) but only to the extent that (1) the sum of all Non-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Non-Defaulting Revolving Lenders’ Commitments, (2) the conditions set forth in Section 6.03 are satisfied at such time and (3) the sum of each Non-Defaulting Lender’s Revolving CommitmentsCredit Exposure plus its reallocated share of such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment; provided that that, subject to Section 12.22, no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(iiB) if the reallocation described in clause (iSection 4.03(c)(iii)(A) above cannot, or can only partially, be effected, then the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize Cash Collateralize for the benefit of the Dollar Issuing Banks Bank only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to Section 4.03(c)(iii)(A)) in accordance with the procedures set forth in Section 2.05(i2.08(j) for so long as such LC Exposure is outstandingoutstanding and the relevant Defaulting Lender remains a Defaulting Lender;
(iiiC) if the Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 4.03(c)(iii)(B), then the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b3.05(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralizedCash Collateralized;
(ivD) if any portion of the LC Exposure of such the Non-Defaulting Lender Lenders is reallocated pursuant to clause (i) aboveSection 4.03(c)(iii)(A), then the fees payable to the Lenders pursuant to Sections 2.12(aSection 3.05(a) and 2.12(bSection 3.05(b) shall be adjusted to give effect to in accordance with such reallocationNon-Defaulting Lenders’ Applicable Percentages; andor
(vE) if all or any portion of such Defaulting Lender’s LC Exposure is neither Cash Collateralized nor reallocated nor cash collateralized pursuant to clause (iSection 4.03(c)(iii)(A) or (ii) aboveSection 4.03(c)(iii)(B), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b3.05(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated Cash Collateralized and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lenderreallocated.
Appears in 3 contracts
Samples: Restructuring Support and Lock Up Agreement (Legacy Reserves Inc.), Restructuring Support and Lock Up Agreement (Legacy Reserves Inc.), Credit Agreement (Legacy Reserves Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all Non-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender 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 to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, unless in each case, case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each the Swingline Lender and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment reallocated in accordance with their Applicable Percentages and on such date such Revolving Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Restored Lender to hold such Revolving Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage; provided that no adjustments will be made retroactively ” meaning, with respect to fees accrued or payments any Lender for purposes of reallocations to be made by or on behalf pursuant to this paragraph, the percentage of the Borrower while Aggregate Revolving Commitment represented by such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting LenderLenders at such time).
Appears in 3 contracts
Samples: Credit Agreement (NCR Corp), Credit Agreement (NCR Corp), Credit Agreement (NCR Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.4;
(b) the Revolving Credit Commitment and Revolving Aggregate Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite the Majority Revolving Facility Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.0210.1); provided provided, that any 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 all Lenders each Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of (and such Defaulting Lender in accordance with the terms hereofis affected);
(c) if any LC Exposure exists L/C Obligations exist at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender L/C Obligations shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Revolving Credit Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Aggregate Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure L/C Obligations does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving CommitmentsCredit Commitments and (y) the conditions set forth in Section 5.3 are satisfied at such time; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of cash collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and L/C Obligations (Bafter giving effect to any partial reallocation pursuant to clause (i) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated above) in accordance with the procedures set forth in Section 2.05(i) 8 for so long as such LC Exposure is L/C Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to clause (ii) aboveSection 2.21(c), the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b3.3(a) with respect to such portion of Defaulting Lender’s L/C Obligations during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is L/C Obligations are cash collateralized;
(iv) if any portion the L/C Obligations of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (i) aboveSection 2.21(c), then the fees payable to the Lenders pursuant to Sections 2.12(a) Section 2.4 and 2.12(bSection 3.3(a) shall be adjusted to give effect to such reallocationin accordance with the non-Defaulting Lenders’ Revolving Credit Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is L/C Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.21(c), then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Credit Commitment that was utilized by such L/C Obligations) and letter of credit fees payable under Section 2.12(b3.3(a) with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of Lender until such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated L/C Obligations are cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders Issuing Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is reasonably satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.21(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.21(c)(i) (and such Defaulting Lender Lenders shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Borrower and the Issuing Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, L/C Obligations of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving LenderXxxxxx’s Revolving Credit Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Credit Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Credit Loans in accordance with its Applicable Revolving Credit Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 3 contracts
Samples: Credit Agreement (Sba Communications Corp), Credit Agreement (Sba Communications Corp), 2018 Refinancing Amendment (Sba Communications Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(ai) commitment fees Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a3.05(a);.
(bii) The Commitment, the Maximum Credit Amount and the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite the Majority Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.0212.02); , provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all Lenders each affected thereby shall, except as otherwise provided in Section 9.02, Lender shall require the consent of such Defaulting Lender in accordance with Lender; and provided further that any redetermination or affirmation of the terms hereof;Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e., the Applicable Percentage of the Borrowing Base of a Defaulting Lender) may not be increased without the consent of such Defaulting Lender.
(ciii) if If any LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(iA) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages (for the purposes of such reallocation the Defaulting Lender’s Commitment shall be disregarded in determining the Non-Defaulting Lender’s Applicable Percentage) but only to the extent that (1) the sum of all Non-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause , and (i2) shall constitute a waiver or release the sum 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 each Non-Defaulting Lender’s Revolving Lender as a result Credit Exposure plus its reallocated share of such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Revolving Lender’s increased exposure following such reallocationCommitment;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks Bank only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (A) above) in accordance with the procedures set forth in Section 2.05(i2.08(j) for so long as such LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (iiB) above, then the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b3.05(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(ivD) if any portion of the LC Exposure of such the Non-Defaulting Lender Lenders is reallocated pursuant to clause (iA) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 3.05(a) and 2.12(bSection 3.05(b) shall be adjusted to give effect to in accordance with such reallocationNon-Defaulting Lenders’ Applicable Percentages; and
(vE) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (iA) or (iiB) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b3.05(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(div) so So long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Issuing Bank shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c4.03(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i4.03(c)(iii)(A) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Issuing Bank 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, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender Borrower and each applicable the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender and such Lender is no longer a Defaulting Lender, then the Swingline LC Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date date, if necessary, such Revolving Lender shall purchase at par such of the Revolving Loans and/or participations in Letters of Credit of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (New Source Energy Partners L.P.), Credit Agreement (New Source Energy Partners L.P.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders, the Majority in Interest of the Revolving Lenders or any other requisite the Majority in Interest of the Term Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that, except as otherwise provided that any in Section 9.02, 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 all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) so long as at the time of such reallocation (x) no Default has occurred and is continuing and (y) the conditions set forth in Section 4.02 are satisfied: all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Multicurrency Tranche Lenders in accordance with their respective Applicable Multicurrency Tranche Percentages but only to the extent that (A) the sum of all Nonnon-Defaulting Revolving Lenders’ Multicurrency Tranche Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure does not exceed the total of all non-Defaulting Multicurrency Tranche Lenders’ Multicurrency Tranche Commitments and (B) each non-Defaulting Lender’s Multicurrency Tranche Revolving Credit Exposure does not exceed such non-Defaulting Lender’s Multicurrency Tranche Commitment; and all or any part of the Dollar Tranche LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Dollar Tranche Lenders in accordance with their respective Dollar Tranche Percentages but only to the extent (C) the sum of all non-Defaulting Lenders’ Dollar Tranche Revolving Credit Exposures plus such Defaulting Lender’s Dollar Tranche LC Tranche Exposure does not exceed the total of all non-Defaulting Dollar Tranche Lenders’ Dollar Tranche Commitments and (D) each non-Defaulting Lender’s Dollar Tranche Revolving Credit Exposure does not exceed such non-Defaulting Lender’s Dollar Tranche Commitment; and all or any part of the Multicurrency Tranche LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Multicurrency Tranche Lenders in accordance with their respective Multicurrency Tranche Percentages but only to the extent (E) the sum of all Nonnon-Defaulting Revolving Lenders’ Multicurrency Tranche Revolving Commitments; provided that no reallocation under this clause (i) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Credit Exposures plus such Defaulting Lender, including any claim ’s Multicurrency Tranche LC Tranche Exposure does not exceed the total of a Nonall non-Defaulting Revolving Lender as a result of such NonMulticurrency Tranche Lenders’ Multicurrency Tranche Commitments and (F) each non-Defaulting Revolving Lender’s increased exposure following Multicurrency Tranche Revolving Credit Exposure does not exceed such reallocationnon-Defaulting Lender’s Multicurrency Tranche Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks only the portion of Borrowers’ obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Banks or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank Banks shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Non-Defaulting Revolving nonDefaulting Lenders and/or cash collateral will be provided by the Borrower Company in accordance with Section 2.20(c2.25(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, renewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.25(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event or a Bail-In Action with respect to a Parent of any Lender shall occur following the Original Effective Date and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank 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, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the applicable Issuing Bank, as the case may be, shall have entered into arrangements with the Company or such Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdingsthe Company, the Borrower, each Swingline Lender and each applicable the Issuing Bank Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Dollar Tranche Revolving Loans and/or Multicurrency Tranche Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (LKQ Corp), Credit Agreement (LKQ Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that the sum of all Non-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender 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 to give effect to such reallocation; and;
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such LC Exposure) and participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(dvi) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, unless in each case, case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with Parent and the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, HoldingsParent, the Borrower, each the Swingline Lender and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (PetroLogistics LP), Credit Agreement (PetroLogistics LP)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if If any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any LC Exposure exists at the time such Revolving Credit Lender becomes a Defaulting Lender, then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which , until such time as such Lender is no longer a Defaulting Lender, such Defaulting Lender shall have funded its Lender’s participation as contemplated by Section 2.04(c) and (y) the portion in Letters of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender Credit shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable applicable Pro Rata Percentages (calculated without regard to such Defaulting Lender’s Commitments), but only to the extent that such reallocation does not cause the sum aggregate Revolving Credit Exposure of all any Non-Defaulting Revolving Lenders’ Revolving Exposures plus Lender to exceed such Non-Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no Credit Commitment. No reallocation under this clause (i) hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender Xxxxxx having become a Defaulting Lender, including any claim of a Non-Defaulting Revolving Lender as a result of such Non-Defaulting Revolving LenderXxxxxx’s increased exposure following such reallocation;
(ii) if . If the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender 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 to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, thenapplicable Borrowers shall, without prejudice to any rights right or remedies of any remedy available to it hereunder or under law, enter into arrangements reasonably satisfactory to the applicable Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) and the applicable Borrowers to eliminate such Issuing Bank’s risk with respect to the participations in Letters of Credit by all Defaulting Lenders to the extent not so reallocated, including by cash collateralizing each such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) Pro Rata Percentage of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting LenderL/C Exposures.
Appears in 2 contracts
Samples: Specified Refinancing Amendment, Incremental Amendment and Administrative Agency Transfer Agreement (Pactiv Evergreen Inc.), Credit Agreement (Pactiv Evergreen Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that such reallocation does not cause the sum Aggregate Revolving Exposure of all any Non-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not Lender to exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocationRevolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the a Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the such Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender 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 to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, unless in each case, case it is reasonably satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower Borrowers in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdingsthe Borrowers, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees agree in writing that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment reallocated in accordance with their Applicable Percentages and on such date such Revolving Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Restored Lender to hold such Revolving Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage; provided that no adjustments will be made retroactively ” meaning, with respect to fees accrued or payments any Lender for purposes of reallocations to be made by or on behalf pursuant to this paragraph, the percentage of the Borrower while Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender was a but disregarding the Revolving Commitments of the Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected partiesLenders at such time). Subject to Section 9.20, no change reallocation hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from such Revolving Lender’s that Lender having been 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.
Appears in 2 contracts
Samples: Incremental Facility Agreement (Ingevity Corp), Credit Agreement (Ingevity Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Commitment, Revolving Commitment and Revolving Credit Exposure and/or Term Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite the applicable Majority Facility Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that, except as otherwise provided that any in Section 9.02, 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 all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such a 2023 Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders with 2023 Revolving Lenders Commitments in accordance with their respective 2023 Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ 2023 Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ 2023 Revolving Commitments and (y) the sum of all Noneach non-Defaulting Lender’s 2023 Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) shall constitute a waiver or release Credit Exposure plus the amount of any claim of any party hereunder against a such Defaulting Lender’s Swingline Exposure and LC Exposure reallocated to such non-Defaulting Lender arising from that Lender having become a does not exceed such non-Defaulting Lender, including any claim of a Non-Defaulting ’s 2023 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocationCommitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one three (3) Business Day Days following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks only, the portion of Borrowers’ obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the 2023 Revolving Lenders pursuant to Sections Section 2.12(a) and Section 2.12(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ 2023 Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the relevant Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the such Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such 2023 Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the relevant Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the 2023 Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.24(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders with 2023 Revolving Commitments in a manner consistent with Section 2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any 2023 Revolving Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank has a good faith belief that any 2023 Revolving Lender has defaulted in fulfilling its funding obligations under one or more other agreements in which such 2023 Revolving Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unlessunless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Company or such 2023 Revolving Lender, reasonably satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion respect of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the 2023 Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein)hereunder. In the event that the Administrative Agent, Holdingsthe Company, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender with a 2023 Revolving Commitment has adequately remedied all matters that caused the applicable such 2023 Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the 2023 Revolving Lenders shall be readjusted to reflect the inclusion of such 2023 Revolving Lender’s 2023 Revolving Commitment and on such date such 2023 Revolving Lender shall purchase at par such of the 2023 Revolving Loans of the other 2023 Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such 2023 Revolving Lender to hold such Revolving Loans in accordance with its 2023 Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Capri Holdings LTD), Credit Agreement (Capri Holdings LTD)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment facility fees shall cease to accrue pursuant to Section 2.11(a) on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a)in excess of the Revolving Credit Exposure of such Defaulting Lender;
(b) the Revolving Commitment Commitments, LC Exposure and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.02); , provided that any 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 all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the such Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause Commitments and (iy) 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 Revolving Lender as a result of the conditions set forth in Section 4.02 are satisfied at such Non-Defaulting Revolving Lender’s increased exposure following such reallocationtime;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one two Business Day Days following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks Bank only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.11(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.19(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will or newly made Swingline Loan shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a reasonable 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, then the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each the Swingline Lender and each applicable the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively Percentage (as determined prior to such Lender becoming a Defaulted Lender but after giving effect to any Commitment reductions or increases in accordance with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lenderterms hereof).
Appears in 2 contracts
Samples: Credit Agreement (KEMPER Corp), Credit Agreement (KEMPER Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded unused portion of the Commitment Commitments of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0211.02); provided that any 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 all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any US Tranche LC Exposure exists at the time such Revolving a US Tranche Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and US Tranche LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders constituting US Tranche Lenders in accordance with their respective Applicable Percentages US Tranche Revolving Percentages, but only to the extent that (A) the sum of all Nonnon-Defaulting Revolving Lenders’ US Tranche Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and US Tranche LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ US Tranche Revolving Commitments; provided that no reallocation under this clause Commitments and (iB) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a each non-Defaulting Lender, including any claim of a Non’s US Tranche Revolving Exposure does not exceed such non-Defaulting Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocationUS Tranche Revolving Commitment;
(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 (A) firstAgent, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, Company shall cash collateralize for the benefit of the Dollar Issuing Banks Bank only the portion of Company’s obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Company shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender 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 to give effect to in accordance with such reallocationnon-Defaulting Lenders’ US Tranche Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized;
(d) [reserved]; and
(de) in the case of a US Tranche Lender, so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Issuing Bank shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the US Tranche Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower Company in accordance with Section 2.20(c2.23(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.23(c)(i) (and such Defaulting Lender shall not participate therein). No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against 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.
(i) a Bankruptcy Event or a Bail-In Action with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) any Issuing Bank 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 Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Issuing Bank shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank to defease any risk to it in respect of such Lender hereunder. Cash collateral (or the appropriate portion thereof) provided to reduce the Issuing Bank’s LC Exposure shall no longer be required to be held as cash collateral pursuant to this Section 2.23 following (i) the elimination of the applicable LC Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent and the Issuing Bank that there exists excess cash collateral. In the event that each of the Administrative Agent, Holdings, the Borrower, each Swingline Lender Company and each applicable the Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline LC Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment Commitments and on the date of such date readjustment such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable related Tranche Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower Company while such Revolving Lender was a Defaulting Lender; provided further thatand provided, further, that except as to the extent otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of or any claim of or any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Insight Enterprises Inc), Credit Agreement (Insight Enterprises Inc)
Defaulting Lenders. Notwithstanding (a) If any provision Letters of this Agreement to Credit are outstanding at the contrary, if any Revolving time a Lender becomes a Defaulting Lender, then and the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall Commitments have not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender been terminated in accordance with the terms hereof;
(c) if any LC Exposure exists at the time such Revolving Lender becomes a Defaulting LenderArticle 7, then:
(i) so long as no Default has occurred and is continuing, all or any part of the Swingline Exposure (other than (x) any portion thereof with respect aggregate amount available to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion be drawn under all outstanding Letters of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender Credit shall be reallocated among the NonLenders that are not Defaulting Lenders (“non-Defaulting Revolving Lenders Lenders”) in accordance with their respective Applicable Percentages Percentage (disregarding any Defaulting Lender’s Commitment) but only to the extent that the sum of (A) the aggregate principal amount of all NonLoans made by such non-Defaulting Revolving Lenders (in their capacity as Lenders) and outstanding at such time, plus (B) such non-Defaulting Lenders’ Revolving Exposures Applicable Percentage (before giving effect to the reallocation contemplated herein) of the aggregate amount available to be drawn under all outstanding Letters of Credit, plus (C) the aggregate principal amount of all Loans made by each Issuing Bank pursuant to Section 2.02 that have not been ratably funded by such non-Defaulting Lenders and outstanding at such time, plus (D) such Defaulting Lender’s Swingline Exposure and LC Exposure Applicable Percentage of the aggregate amount available to be drawn under such Letters of Credit, does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;.
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) firstAgent, prepay the portion of cash collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit Applicable Percentage of the Dollar aggregate amount available to be drawn under such Letters of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) by paying cash collateral to the applicable Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) Bank for so long as such LC Exposure is Letters of Credit are outstanding;
(iii) if the Borrower cash collateralizes any portion Applicable Percentage of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion Letters of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion Credit of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (i) abovethis Section 2.20, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.11(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentage of Letters of Credit; andor
(viv) if all or any portion of such Defaulting Lender’s LC Exposure Applicable Percentage of Letters of Credit is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.20, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender or the Borrower hereunder, all participation letter of credit fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure Applicable Percentage of Letters of Credit shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of Bank until such Defaulting Lender’s LC Exposure attributable to Applicable Percentage of Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralized; andreallocated.
(db) so So long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.20(c)2.20, and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.20(a)(i) (and such Defaulting Lender Lenders shall not participate therein).
(c) No Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.20, performance by the Borrower of its obligations shall not be excused or otherwise modified as a result of the operation of this Section 2.20. In The rights and remedies against a Defaulting Lender under this Section 2.20 are in addition to any other rights and remedies which the event that Borrower, the Administrative Agent, Holdingsany Issuing Bank, or any Lender may have against such Defaulting Lender.
(d) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 7 or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 9.08), 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 that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to any Issuing Bank hereunder or the Swingline Lender; third, if so determined by the Administrative Agent or requested by any Issuing Bank or the Swingline Lender, to be held as cash collateral for future funding obligations of that Defaulting Lender of any participation in any Swingline Loan or Letter of Credit; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, each to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks or the Swingline Lender and each applicable as a result of any judgment of a court of competent jurisdiction obtained by any Lender, Issuing Bank each agrees or Swingline Lender against that a Defaulting Lender has adequately remedied all matters as a result of that caused the applicable Revolving Lender to be a Defaulting Lender’s breach of its obligations under this Agreement; seventh, then so long as no Default or Event of Default exists, to the Swingline Exposure and LC Exposure, payment of any amounts owing to the Borrower as applicable, a result of any judgment of a court of competent jurisdiction obtained by the Revolving Lenders shall be readjusted to reflect the inclusion Borrower against that Defaulting Lender as a result of such Revolving that Defaulting Lender’s Revolving Commitment breach of its obligations under this Agreement; and on such date such Revolving eighth, to that Defaulting Lender shall purchase at par such or as otherwise directed by a court of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentagecompetent jurisdiction; provided that no adjustments will be made retroactively with respect to fees accrued if (x) such payment is a payment of the principal amount of any Loans or payments made any LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower while at such Revolving time in respect of which that Defaulting Lender was has not fully funded its appropriate share and (y) such Loans or such LC Disbursements were made at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Disbursements owed to, that Defaulting Lender; provided further that. Any payments, except as otherwise expressly agreed by the affected parties, no change hereunder from prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.20(d) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 2 contracts
Samples: Credit Agreement (Cloud Peak Energy Resources LLC), Credit Agreement (Cloud Peak Energy Resources LLC)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lenderapply:
(ai) commitment fees Facility Fees shall cease to accrue on the unfunded unused portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);Lender’s Commitment.
(bii) the Revolving The Commitment and Revolving Outstanding Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.028.2); provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all Lenders each affected thereby shall, except as otherwise provided in Section 9.02, Lender shall require the consent of such Defaulting Lender (in accordance with such case, to the terms hereof;extent such Defaulting Lender is an affected Lender).
(ciii) if any LC Exposure exists at the time such Revolving Lender becomes Unless a Defaulting LenderDefault or an Unmatured Default shall have occurred and be continuing, then:
(i) all or any part of the such Defaulting Lender’s Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages Pro Rata Shares of the Aggregate Commitment, but only to the extent that the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Outstanding Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this .
(iv) If the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (iiii) above, then the LC Participation Fees payable to the Lenders pursuant to Section 2.8.2 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following be adjusted in accordance with such reallocation;.
(iiv) if If (or to the extent) the reallocation described in clause (iiii) above cannot, or can only partially, be effected, the each Borrower shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s non-reallocated portion of the Swingline Exposure that has not been reallocated attributable to Swingline Loans made to such Borrower and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks such Borrower’s obligations corresponding to the portion of such Defaulting Lender’s Dollar non-reallocated LC Exposure that has not been reallocated is attributable to Letters of Credit issued for the account of such Borrower (in each case, as determined after giving effect to any partial reallocation pursuant to clause (iii) above) in accordance with the procedures set forth in Section 2.05(i2.6(i) for so long as such LC Exposure is outstanding;.
(iiivi) if the If a Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (iiv) above, the such Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) 2.8.2 with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;.
(ivvii) if The Agent shall adjust the allocation of payments hereunder to ensure that a Defaulting Lender does not receive payment in respect of any portion Loan or LC Disbursement that it did not fund or to reflect any of the LC Exposure of such Defaulting Lender is reallocated pursuant actions or adjustments referred to clause in this Section 2.25.
(b) If (i) above, then the fees payable a Bankruptcy Event with respect to the Lenders pursuant to Sections 2.12(a) parent company of any Lender shall occur following the date hereof and 2.12(b) for so long as such event shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) continue or (ii) above, then, without prejudice to any rights the Swingline Lender or remedies of any Issuing Bank shall have a good faith belief that any Lender has defaulted in fulfilling its obligations under one or any more other agreements in which such Lender hereunder, all participation fees payable under Section 2.12(b) with respect commits to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lenderextend credit, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no such Issuing Bank shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unlessunless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the applicable Borrower or such Lender reasonably satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to mitigate the risk to it in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion respect of such Swingline Exposure referred Lender failing to in clause satisfy its participating interest therein.
(bc) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdingseach Borrower, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans (other than Competitive Loans and Swingline Loans) and participations in LC Disbursements of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; Pro Rata Share.
(d) Except as expressly provided that no adjustments will be made retroactively in this Section 2.25 in connection with respect to fees accrued or payments made by or on behalf the obligations of the Borrower while such Revolving Swingline Lender was a Defaulting or the Issuing Banks, the obligation of each Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Issuing Bank and Swingline Lender to a Non-Defaulting Revolving fund the full amount of its Commitment and to make Loans, Advances and other extensions of credit hereunder shall not be released or diminished in any respect by any other Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been becoming a Defaulting Lender.
(e) None of the foregoing provisions of this Section 2.25 shall be deemed to effect, diminish or release any rights, claims or causes of action the Borrowers may have against any Lender that becomes a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Ameren Energy Generating Co), Credit Agreement (Ameren Energy Generating Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders adversely affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any LC Exposure exists at the time such a Revolving Lender becomes a Defaulting Lender, then:
(i) [reserved];
(ii) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Revolver Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving CommitmentsCommitments and (y) such reallocation does not cause the aggregate Revolving Exposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Commitment; provided that that, subject to Section 9.18, no reallocation under this clause (iii) 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 Nonnon-Defaulting Revolving Lender as a result of such Nonnon-Defaulting Revolving Lender’s increased exposure following such reallocation;
(iiiii) if the reallocation described in clause (iii) above cannot, or can only partially, be effected, the Swiss Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iiiiv) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure is cash collateralized pursuant to clause (iiiii) above, the Borrower Borrowers shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(ivv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (iii) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(vvi) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (iii) or (iiiii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, Credit unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral provided by the Swiss Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.20(c)(ii) (and such Defaulting Lender shall not participate therein). In the event that (i) a Bankruptcy Event with respect to a Revolving Lender Parent shall occur following the Effective Date and for so long as such Bankruptcy Event shall continue or (ii) any applicable Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, unless such Issuing Bank shall have entered into arrangements with Holdings and the Swiss Borrower or the applicable Revolving Lender, satisfactory to such Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender applicable Borrower and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the Swingline LC Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the applicable Class of the other Revolving Lenders of such Class as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans of such Class in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Swiss Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Nonnon-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Garrett Motion Inc.), Credit Agreement (Garrett Motion Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment Commitments and Revolving Exposure Credit Exposures of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided provided, that any this clause (b) shall not apply in the case of an amendment, waiver or other modification requiring the consent of all Lenders each Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any US Swingline Exposure, European Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) (x) with respect to any US Swingline Exposure, all or any part of the US Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages Combined Tranche Percentages, but only to the extent that no non-Defaulting Lender’s Revolving Credit Exposure of either Tranche, as increased by its share under such Tranche of such Defaulting US Swingline Exposure, would exceed such non-Defaulting Lender’s Commitment under such Tranche, (y) with respect to any European Swingline Exposure, all or any part of the European Swingline Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Multicurrency Tranche Lenders in accordance with their respective Multicurrency Tranche Percentages, but only to the extent the sum of all Nonnon-Defaulting Revolving Multicurrency Tranche Lenders’ Multicurrency Tranche Revolving Credit Exposures plus such Defaulting Lender’s European Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Multicurrency Tranche Lenders’ Revolving Multicurrency Tranche Commitments; provided , and (z) with respect to any LC Exposure, all or any part of the LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Combined Tranche Percentages, but only to the extent that no reallocation under this clause (i) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a non-Defaulting Lender’s Revolving Credit Exposure of either Tranche, including any claim as increased by its share under such Tranche of a Nonsuch Defaulting Lender’s LC Exposure, would exceed such non-Defaulting Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following Commitment under such reallocationTranche;
(ii) if the reallocation reallocations described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (Aafter giving effect to any partial reallocation pursuant to clause (i) first, above) (x) prepay the portion of such Defaulting Lender’s US Swingline Exposure or European Swingline Exposure that has cannot been be reallocated and and/or (By) second, cash collateralize for the benefit of the Dollar Issuing Banks only the Borrowers’ obligations corresponding to the portion of such Defaulting Lender’s Dollar LC Exposure that has cannot been be reallocated in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted in accordance with the amounts of such LC Exposure allocated to give effect to such reallocationthe non-Defaulting Lenders; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Banks or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(dvi) so long as such Revolving Lender is a Defaulting Lender, the no Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion or LC Exposure of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, Defaulting Lender will be fully covered by the Revolving Commitments of the Non100% reallocated to non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower collateralized in accordance with Section 2.20(c2.23(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, renewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders of the applicable Tranche in a manner consistent with Section 2.20(c)(i2.23(c)(i) (and such Defaulting Lender shall not participate therein).
(d) If (i) a Bankruptcy Event with respect to a parent entity of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) a Swingline Lender or an Issuing Bank 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 Swingline Lender shall not be required to fund any Swingline Loan and such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrowers or such Lender reasonably satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to eliminate any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the BorrowerBorrowers, each Swingline Lender and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure Exposures and LC Exposure, as applicable, Exposures of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment Commitments and on such date such Revolving Lender shall purchase at par such of the Revolving US Tranche Loans and/or Multicurrency Tranche Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender the Lenders to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will their applicable Tranche Percentages. No Commitment of any Lender shall be made retroactively with respect to fees accrued increased or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further thatotherwise affected and, except as otherwise expressly agreed provided in this Section, performance by the affected partiesBorrowers of their obligations hereunder and under the other Loan Documents shall not be excused or otherwise modified, no change hereunder from as a result of the operation of this Section. The rights and remedies against a Defaulting Lender under this Section are in addition to a Nonother rights and remedies that the Borrowers, the Administrative Agent, the Swingline Lenders, any Issuing Bank or any non-Defaulting Revolving Lender will constitute may have against such Defaulting Lender (and, for the avoidance of doubt, each non-Defaulting Lender shall have a waiver or release claim against any Defaulting Lender for any losses it may suffer as a result of any claim the operation of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lenderthis Section).
Appears in 2 contracts
Samples: Credit Agreement (Kellogg Co), Credit Agreement (Kellogg Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all Lenders each affected thereby shallLender which affects such Defaulting Lender disproportionately when compared to the other affected Lenders, except as otherwise provided in Section 9.02or increases or extends the Commitment of such Defaulting Lender, shall require the consent of such Defaulting Lender in accordance with the terms hereofLender;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (A) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Commitments, (B) such reallocation does not cause the Revolving Commitments; provided that no reallocation under this clause (i) shall constitute a waiver or release Credit Exposure of any claim of any party hereunder against a non-Defaulting Lender arising from that Lender having become a to exceed such non-Defaulting Lender’s Commitment, including any claim of a Non-Defaulting Revolving Lender as a result of and (C) the conditions set forth in Section 4.02 are satisfied at such Non-Defaulting Revolving Lender’s increased exposure following such reallocationtime;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks Bank only the portion of Company’s obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Company shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation facility fees that otherwise would have been payable under Section 2.12(a) to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, (i) the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully one hundred percent (100%) covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower Company in accordance with Section 2.20(c)clause (c) above, and (ii) participating interests in any such funded newly made Swingline Loan or in any such newly issued, amended, renewed or extended Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(iclause (c)(i) above (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdingsthe Company, the Borrower, each Swingline Lender and each applicable the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Cabot Corp), Credit Agreement (Cabot Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.02); , provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all each affected Lender which affects such Defaulting Lender differently than other affected Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereofLender;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the such Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving CommitmentsCommitments and (y) the conditions set forth in Section 4.02 are satisfied at such time; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks Bank only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.19(c), the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) aboveSection 2.19(c), then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.19(c), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation Unused Fees that otherwise would have been payable to such Defaulting Lender under Section 2.11(a) (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.19(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will or newly made Swingline Loan shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If a Bankruptcy Event with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each the Issuing Bank and the Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall (i) purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided Percentage and (ii) reimburse the other Lenders for any amounts that no adjustments will would be made retroactively with respect owing to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was Lenders under Section 2.15 if such purchase were a Defaulting Lender; provided further that, except as otherwise expressly agreed repayment by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting LenderBorrower.
Appears in 2 contracts
Samples: Loan Agreement (Cheesecake Factory Inc), Loan Agreement (Cheesecake Factory Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment Commitments of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the Revolving right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite the Supermajority Revolving Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofhereunder;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that Commitments of such Class, (y) no reallocation under this clause (i) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a non-Defaulting Lender, including any claim ’s Revolving Exposure under such Class of a Non-Defaulting Revolving Lender Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of such Non-Defaulting Revolving Lender’s increased exposure following such reallocationDefault has then occurred and is continuing;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one Business Day following notice by the Administrative Agent (Ax) first, in the case of the U.S. Borrower, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize Cash Collateralize, for the benefit of the Dollar applicable Issuing Banks the portion of Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the a Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the such Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralizedCash Collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender 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 to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralizedCash Collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders applicable Issuing Bank under the applicable Facility shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral Cash Collateral will be provided by the Borrower applicable Borrower(s) in accordance with Section 2.20(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, renewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event 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) any Issuing Bank or the Swingline 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 Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, Holdingsthe Borrowers, the Borrowerapplicable Issuing Banks and, each in the case of the U.S. Facility, the Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and and/or LC Exposure, as applicable, Exposure of the Revolving Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on the date of such date readjustment such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees Facility Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.028.7); provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all each affected Lender which affects such Defaulting Lender differently than other affected Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender; provided further that the Commitment of a Defaulting Lender may not be increased and the Availability Period as it applies to a Defaulting Lender may not be extended, in accordance with each case without the terms hereofconsent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the such Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all non-Defaulting Lenders’ Commitments, (y) such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of to exceed such Non-Defaulting Revolving Lender’s increased exposure following Commitment and (z) the conditions set forth in paragraphs (a) and (b) of Section 4.2 are satisfied at such reallocation;time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks Lender only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i) Article VI for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.23(c)(ii), the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(c) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) aboveSection 2.23(c)(i), then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(c) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethe foregoing provisions of Section 2.23(c), then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation Facility Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b2.11(c) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Lender until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralized; andreallocated;
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.23(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will or newly made Swingline Loan shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.23(c)(i) (and such Defaulting Lender Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise, including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.17(c) but excluding Section 2.18) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Lender or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or Swingline Lender, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any existing or future participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, if requested by the Company and with the approval of the Administrative Agent (such approval not to be unreasonably withheld or delayed), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, (v) fifth, if requested by the Company and with the approval of the Administrative Agent (such approval not to be unreasonably withheld or delayed), held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by any Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, provided that, with respect to this clause (viii), if such payment is (A) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements which a Defaulting Lender has funded its participation obligations and (B) made at a time when the conditions set forth in Section 4.2 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the 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, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Lender, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdingsthe Company, the Borrower, each Issuing Lender and the Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Five Year Revolving Credit Facility Agreement (Mead Johnson Nutrition Co), Revolving Credit Facility Agreement (Mead Johnson Nutrition Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.12;
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders or any other requisite the Required Multicurrency Tranche Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.02); , provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all each affected Lender which affects such Defaulting Lender differently than other affected Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereofLender;
(c) if any LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Multicurrency Tranche Revolving Credit Exposure Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Multicurrency Tranche Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving CommitmentsMulticurrency Tranche Commitments and (y) the conditions set forth in Section 4.02 are satisfied at such time; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of cash collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.22(c), the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) aboveSection 2.22(c), then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) Section 2.12 shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Multicurrency Tranche Revolving Credit Exposure Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.22(c), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Multicurrency Tranche Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders Issuing Bank shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Multicurrency Tranche Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower Borrowers in accordance with Section 2.20(c2.22(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.22(c)(i) (and such Defaulting Lender Lenders shall not participate therein). .
(e) In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender Borrowers and each applicable the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline LC Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Multicurrency Tranche Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Multicurrency Tranche Revolving Credit Exposure Percentage and/or its Dollar Tranche Revolving Credit Exposure Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lenderapplicable.
Appears in 2 contracts
Samples: Credit Agreement (Argo Group International Holdings, Ltd.), Credit Agreement (Argo Group International Holdings, Ltd.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees Commitment Interest pursuant to Section 2.11(a) shall cease to accrue on the unfunded unutilized portion of the applicable Commitment of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) the Revolving Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided provided, that any 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 all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the such Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender term) shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Commitments and (y) no non-Defaulting Lender’s Revolving Commitments; provided Credit Exposures plus such non-Defaulting Lender’s Applicable Adjusted Percentage of such Defaulting Lender’s Swingline Exposure and LC Exposure exceeds such non-Defaulting Lender’s Commitment provided, that subject to Section 9.18, no reallocation under this clause (i) 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 Nonnon-Defaulting Revolving Lender as a result of such Nonnon-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Revolving Borrower shall within one two Business Day Days following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks Bank only the portion of Revolving Borrower’s obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Revolving Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Revolving Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(d) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(d) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b2.11(d) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the no Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Revolving Borrower in accordance with Section 2.20(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, renewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). .
(e) In the event that the Administrative Agent, Holdingsthe Revolving Borrower, the Borrower, each Swingline Lender and each applicable the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then (i) 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 such Lender will cease to be a Defaulting Lender; provided, however, 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 the Revolving Borrower or any other party hereunder arising from such Lender’s having been a Defaulting Lender, and the Revolving Borrower and such other party shall retain and reserve any such claim, and (ii) the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Revolving Credit Agreement (PERRIGO Co PLC), Revolving Credit Agreement (PERRIGO Co PLC)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Senior Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof2.04(e)) and LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f2.05(g)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that the sum of all Non-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c2.22(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.22(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and such Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or the applicable Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each the Swingline Lender and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Rite Aid Corp), Credit Agreement (Rite Aid Corp)
Defaulting Lenders. Notwithstanding (a) If any provision Letters of this Agreement to Credit are outstanding at the contrary, if any Revolving time a Lender becomes a Defaulting Lender, then and the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall Commitments have not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender been terminated in accordance with the terms hereof;
(c) if any LC Exposure exists at the time such Revolving Lender becomes a Defaulting LenderSection 6.01, then:
(i) so long as no Default has occurred and is continuing, all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion Available Amount of the Swingline Exposure referred to in clause (b) outstanding Letters of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender Credit shall be reallocated among the NonLenders that are not Defaulting Lenders (“non-Defaulting Revolving Lenders Lenders”) in accordance with their respective Applicable Percentages Ratable Shares (disregarding any Defaulting Lender’s Revolving Credit Commitment) but only to the extent that the sum of (A) the aggregate principal amount of all NonAdvances made by such non-Defaulting Revolving Lenders (in their capacity as Lenders) and outstanding at such time, plus (B) such non-Defaulting Lenders’ Revolving Exposures Ratable Shares (before giving effect to the reallocation contemplated herein) of the Available Amount of all outstanding Letters of Credit, plus (C) the aggregate principal amount of all Advances made by each Issuing Bank pursuant to Section 2.03(c) that have not been ratably funded by such non-Defaulting Lenders and outstanding at such time, plus (D) such Defaulting Lender’s Swingline Exposure and LC Exposure Ratable Share of the Available Amount of such Letters of Credit, does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) shall constitute a waiver or release Credit Commitments and the respective revolving extensions of any claim credit of any party hereunder against a each non-Defaulting Lender arising from that Lender having become a do not exceed such non-Defaulting Lender, including any claim of a Non-Defaulting ’s Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;Credit Commitment.
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (A) firstany Issuing Bank, prepay the portion of cash collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and Ratable Share of the Available Amount of such Letters of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) by paying cash collateral to such Issuing Bank; provided that, so long as no Default shall be continuing, such cash collateral shall be released promptly upon the earliest of (A) the reallocation of the Available Amount of outstanding Letters of Credit among non-Defaulting Lenders in accordance with clause (i) above, (B) second, cash collateralize for the benefit termination of the Dollar Defaulting Lender status of the applicable Lender or (C) such Issuing Banks Bank’s good faith determination that there exists excess cash collateral (in which case, the portion of amount equal to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstandingexcess cash collateral shall be released);
(iii) if the Borrower cash collateralizes any portion Ratable Shares of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion Letters of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion Credit of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (i) abovethis Section 2.19(a), then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.04(b)(i) shall be adjusted to give effect to in accordance with such reallocation; andnon-Defaulting Lenders’ Ratable Shares of Letters of Credit;
(viv) if all or any portion of such Defaulting Lender’s LC Exposure Ratable Share of Letters of Credit is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.19(a), then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation Letter of Credit fees payable under Section 2.12(b2.04(b)(i) with respect to such Defaulting Lender’s LC Exposure Ratable Share of Letters of Credit shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of Bank until such Defaulting Lender’s LC Exposure attributable to Ratable Share of Letters of Credit issued by each Issuing Bankis cash collateralized and/or reallocated; and
(v) until and to the extent that such LC Exposure the Available Amount of any outstanding Letter of Credit is reallocated and/or cash collateralized by the Borrowers pursuant to this Section 2.19, the Borrowers shall not be required to pay any commission otherwise payable pursuant to Section 2.04(b)(i) on that portion of the Available Amount that is so cash collateralized; and.
(db) so So long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, Credit unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c)applicable Borrower, and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.19(a)(i) (and such Defaulting Lender Lenders shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Five Year Credit Agreement (Omnicom Group Inc.), Credit Agreement (Omnicom Group Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that such reallocation does not cause the sum aggregate Revolving Exposure of all any Non-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not Lender to exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocationRevolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b2.12(c) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b2.12(c) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b2.12(c) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, unless in each case, case it is reasonably satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each the Swingline Lender and each applicable Issuing Bank each agrees agree in writing that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment reallocated in accordance with their Applicable Percentages and on such date such Revolving Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Restored Lender to hold such Revolving Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage; provided that no adjustments will be made retroactively ” meaning, with respect to fees accrued or payments any Lender for purposes of reallocations to be made by or on behalf pursuant to this paragraph, the percentage of the Borrower while Aggregate Revolving Commitment represented by such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting LenderLenders at such time).
Appears in 2 contracts
Samples: Credit Agreement (Costar Group Inc), Credit Agreement (Costar Group Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(ai) commitment fees Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a3.05(a);.
(bii) The Commitment, the Maximum Credit Amount and the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.0212.02); , provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all Lenders each affected thereby shall, except as otherwise provided in Section 9.02, Lender shall require the consent of such Defaulting Lender in accordance with Lender; and provided further that any redetermination or affirmation of the terms hereof;Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e., the Applicable Percentage of the Available Amount of a Defaulting Lender) may not be increased without the consent of such Defaulting Lender.
(ciii) if If any LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(iA) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages (for the purposes of such reallocation the Defaulting Lender’s Maximum Credit Amount shall be disregarded in determining the Non-Defaulting Lender’s Applicable Percentage) but only to the extent that (1) the sum of all Non-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause Maximum Credit Amounts, and (i2) shall constitute a waiver or release the sum 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 each Non-Defaulting Lender’s Revolving Lender as a result Credit Exposure plus its reallocated share of such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Revolving Lender’s increased exposure following such reallocationMaximum Credit Amount;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall shall, without prejudice to any right or remedy available to it, within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks Bank only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (A) above) in accordance with the procedures set forth in Section 2.05(i2.08(j) for so long as such LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (iiB) above, then the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b3.05(a) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(ivD) if any portion of the LC Exposure of such the Non-Defaulting Lender Lenders is reallocated pursuant to clause (iA) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 3.05(a) and 2.12(bSection 3.05(b) shall be adjusted to give effect to in accordance with such reallocationNon-Defaulting Lenders’ Applicable Percentages; and
(vE) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (iA) or (iiB) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b3.05(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(div) so So long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Issuing Bank shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c4.03(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i4.03(c)(iii)(A) (and such Defaulting Lender shall not participate therein). No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender. If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Issuing Bank has a good faith belief that any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender Borrower and each applicable the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline LC Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment Maximum Credit Amount and on such date date, if necessary, such Revolving Lender shall purchase at par such of the Revolving Loans and/or participations in Letters of Credit of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans and funded and unfunded participations in Letters of Credit in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Santa Maria Energy Corp), Credit Agreement (Santa Maria Energy Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that, except as otherwise provided that any in Section 9.02, 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 all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) no Event of Default has occurred and is continuing and (y) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(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 (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar relevant Issuing Banks only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation Commitment Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.22(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the Closing Date and for so long as such event shall continue, (ii) a Bail-In Action with respect to a Parent of any Lender shall occur following the First Amendment Effective Date and for so long as such event shall continue or (iii) the Swingline Lender or any Issuing Bank 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, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unlessunless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion respect of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein)hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each the Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Hill-Rom Holdings, Inc.), Credit Agreement (Hill-Rom Holdings, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a2.05(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders Lender’s right to approve or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to disapprove any amendment, waiver or other modification pursuant consent with respect to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except this Agreement shall be restricted as otherwise provided set forth in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof12.10(e);
(c) if any Swingline Loans are outstanding, or any LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, then:
then (i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall and such Lender’s Pro Rata Percentage under the applicable Ex-FILO Subfacility or Ex-FILO Subfacilities of any Swingline Exposure outstanding at such time will, subject to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Pro Rata Percentages but only under the applicable Ex-FILO Subfacility or Ex-FILO Subfacilities; provided that (A) each Non-Defaulting Lender’s Ex-FILO Revolving Exposure may not in any event exceed the Ex-FILO Revolving Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation, (B) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Company, any Borrower, any Administrative Agent, any Issuing Bank, any Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender and (C) the conditions to Credit Extensions forth in Section 6 (other than Section 6.01) shall be satisfied 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 conditions are satisfied at such time), (ii) to the extent that all or any portion (the sum “unreallocated portion”) of all the Defaulting Lender’s LC Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Revolving Lenders’ Revolving Exposures plus , whether by reason of the first proviso in Section 2.11(c)(i) above or otherwise, the Borrowers shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Pro Rata Percentage under the applicable Ex-FILO Subfacility or Ex-FILO Subfacilities of outstanding Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no (after giving pro forma effect to any partial reallocation under this pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s LC Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 2.13(j) for so long as such LC Exposure is outstanding, (iii) if the Borrowers Cash Collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to the requirements of this Section 2.11(c), the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.05(c) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized, (iv) if the LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.11(c), then the fees payable to the Lenders pursuant to Section 2.05(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Percentage under the applicable Ex-FILO Subfacility or Ex-FILO Subfacilities and the Borrowers shall not be required to pay any fees to the Defaulting Lender pursuant to Section 2.05(c) with respect to such Defaulting Lender’s LC Exposure during the period that such Defaulting Lender’s LC Exposure is reallocated, or (v) if any Defaulting Lender’s LC Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.11(c), then, without prejudice to any rights or remedies of the Issuing Bank or any Lender hereunder, all fees payable under Section 2.05(c) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such LC Exposure is Cash Collateralized and/or reallocated;
(d) (i) no Issuing Bank will be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless such Issuing Bank is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Ex-FILO Revolving Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.11(c) above or otherwise in a manner reasonably satisfactory to such Issuing Bank; and
(e) no Swingline Lender will be required to fund any Swingline Loans unless the Swingline Lender is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Ex-FILO Revolving Commitments of the Non-Defaulting Lenders or a combination thereof in accordance with the requirements of Section 2.11(c) above.
(f) The Company, Administrative Agent and applicable Issuing Bank may agree in writing that a Lender is no longer a Defaulting Lender. At such time, Pro Rata Percentages under the applicable Subfacility or Subfacilities shall be reallocated without exclusion of such Lender’s Commitments and Loans, and all outstanding Loans, LC Obligations and other exposures under the Commitments shall be reallocated among Lenders and settled by the Administrative Agent (with appropriate payments by the reinstated Lender) in accordance with the readjusted Pro Rata Percentages under the applicable Subfacility or Subfacilities and any amount that has been deposited in accordance with Section 2.13(j) to Cash Collateralize any LC Exposure shall be automatically released and returned to the Company or the Relevant Borrower. Unless expressly agreed in writing by the Company, the Administrative Agent and applicable Issuing Bank, no reinstatement of a Defaulting Lender shall constitute a waiver or release of claims against such Lender. The failure of any Lender to fund a Loan, to make a payment in respect of LC Obligations or otherwise to perform its obligations hereunder shall not relieve any other Lender of its obligations, and no Lender shall be responsible for default by another Lender. Subject to Section 12.22, 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;.
(iig) if the reallocation described in clause (i) above cannotAny payment of principal, interest, fees or can only partially, be effected, the Borrower shall within one Business Day following notice other amounts received by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit account of the Dollar Issuing Banks the portion of such that Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
Lender (iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure whether voluntary or mandatory, at maturity, pursuant to clause (ii) above, Section 10 or otherwise received by the Borrower shall not be required to pay participation fees to such Administrative Agent for that Defaulting Lender pursuant to Section 2.12(b12.10(c) and (d)), 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 that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to any Issuing Bank and any Swingline Lender hereunder; third, as the Company may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, if so determined by the Administrative Agent and the Company, to be held in a non-interest bearing Deposit Account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize, in accordance with Section 2.13(j), the Issuing Banks’ potential future fronting exposure with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant with respect to clause (i) abovefuture Letters of Credit issued under this Agreement; fifth, then the fees payable to the payment of any amounts owing to the Lenders, the Issuing Banks or the Swingline Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or as a result of any portion judgment of such Defaulting a court of competent jurisdiction obtained by any Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Swingline Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such against that Defaulting Lender as a result of that Defaulting Lender’s LC Exposure shall be payable breach of its obligations under this Agreement; sixth, so long as no Default or Event of Default exists, to the Issuing Banks payment of any amounts owing to the Company or any of its Restricted Subsidiaries pursuant to any Bank Product with such Defaulting Lender as certified by a Responsible Officer of the Company to the Administrative Agent (and allocated among them ratably based on with a copy to the amount Defaulting Lender) prior to such date of such payment; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Company or any other Credit Party as a result of any judgment of a court of competent jurisdiction obtained by the Company or any other Credit Party against that Defaulting Lender as a result of that Defaulting Lender’s LC Exposure attributable breach of its obligations under this Agreement; and eighth, to Letters that Defaulting Lender or as otherwise directed by a court of Credit issued by each Issuing Bank) until and to the extent that competent jurisdiction; provided that, if such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender payment is a payment of the principal amount of any Loans or a payment of any unreimbursed LC Disbursements, such payment shall be applied solely to pay the relevant Loans of, and unreimbursed LC Disbursements owed to, the relevant Non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section 2.11(g). 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 Section 2.13(j) shall be deemed paid to and redirected by that Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lenderirrevocably consents hereto.
Appears in 2 contracts
Samples: Credit Agreement (SunOpta Inc.), Credit Agreement (SunOpta Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment Commitments, LC Exposure and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.02); , provided that any 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 all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the such Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (A) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided , (B) the conditions set forth in Section 4.02 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 no such conditions are satisfied at such time), and (C) such reallocation under this clause (i) shall constitute a waiver or release does not cause the aggregate Revolving Credit Exposure 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 Revolving Lender as a result of to exceed such Non-Defaulting Revolving Lender’s increased exposure following such reallocationRevolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one five Business Day Days following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks Bank only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections Section 2.12(a) and Section 2.12(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will or newly made Swingline Loan shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank 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 (the Lender in such case, an “Affected Lender”), the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit to the extent such exposure would have been supported by such Affected Lender, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Affected Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Affected Lender hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each the Swingline Lender and each applicable the Issuing Bank each agrees that a Defaulting Lender or an Affected Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Tupperware Brands Corp), Credit Agreement (Tupperware Brands Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) the commitment fees fee pursuant to Section 2.09(a) shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Lender so long as it is a Defaulting Lender (except to the extent it is payable to an L/C Issuer pursuant to Section 2.12(aclause (b)(v) below);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any LC Exposure exists Swing Line Loans, L/C Obligations or Protective Advance Participations exist at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) Swing Line Loans, L/C Obligations and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender Protective Advance Participations shall be reallocated among the Nonnon-Defaulting Revolving Lenders as follows:
(A) all or any part of such Defaulting Lender’s Tranche 1 Swing Line Participations, Tranche 1 L/C Participations and Tranche 1 Protective Advance Participations shall be reallocated among the non-Defaulting Lenders in accordance with their respective Tranche 1 Applicable Percentages Adjusted Percentages, but only to the extent that (1) the sum of all Nonnon-Defaulting Revolving Lenders’ Tranche 1 Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure Tranche 1 Swing Line Participations, Tranche 1 L/C Participations and LC Exposure Tranche 1 Protective Advance Participations does not exceed the total of all non-Defaulting Lenders’ Tranche 1 Revolving Credit Commitments and (2) the sum of each non-Defaulting Lender’s Tranche 1 Revolving Credit Exposures plus that non-Defaulting Lender’s Tranche 1 Applicable Adjusted Percentage of such Defaulting Lender’s (x) Tranche 1 Swing Line Participations (y) Tranche 1 L/C Participations and (z) Tranche 1 Protective Advance Participations does not exceed the amount of such non-Defaulting Lender’s Tranche 1 Revolving Credit Commitments; and
(B) all or any part of such Defaulting Lender’s Tranche 2 Swing Line Participations, Tranche 2 L/C Participations and Tranche 2 Protective Advance Participations shall be reallocated among the non-Defaulting Lenders in accordance with their respective Tranche 2 Applicable Adjusted Percentages, but only to the extent that (1) the sum of all Nonnon-Defaulting Revolving Lenders’ Tranche 2 Revolving Commitments; provided that no reallocation under this clause (i) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Credit Exposures plus such Defaulting Lender’s Tranche 2 Swing Line Participations, including any claim Tranche 2 L/C Participations and Tranche 2 Protective Advance Participations does not exceed the total of a Nonall non-Defaulting Lenders’ Tranche 2 Revolving Lender as a result Credit Commitments and (2) the sum of each non-Defaulting Lender’s Tranche 2 Revolving Credit Exposures plus that non-Defaulting Lender’s Tranche 2 Applicable Adjusted Percentage of such NonDefaulting Lender’s (x) Tranche 2 Swing Line Participations,(y) Tranche 2 L/C Participations and (z) Tranche 2 Protective Advance Participations does not exceed the amount of such non-Defaulting Revolving Lender’s increased exposure following such reallocationTranche 2 Revolving Credit Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Lead Borrower shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated Swing Line Participations and Protective Advance Participations and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of Cash Collateralize such Defaulting Lender’s Dollar LC Exposure that has not been reallocated L/C Participations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with a manner reasonably satisfactory to the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstandingAdministrative Agent and the L/C Issuer;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligations is Cash Collateralized pursuant to clause (ii) above, the Lead Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) the Letter of Credit Fee with respect to such portion of such Defaulting Lender’s LC Exposure for L/C Obligations so long as such Defaulting Lender’s LC Exposure it is cash collateralizedCash Collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender Lender’s L/C Obligations is reallocated to the non-Defaulting Lenders pursuant to clause (i) above, then the fees payable Letter of Credit Fee with respect to the Lenders pursuant to Sections 2.12(a) and 2.12(b) such portion shall be adjusted to give effect to such reallocationallocated among the non-Defaulting Lenders in accordance with their Tranche 1 Applicable Adjusted Percentages and Tranche 2 Applicable Adjusted Percentages, respectively; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure L/C Obligations is neither Cash Collateralized nor reallocated nor cash collateralized pursuant to clause (i) or (ii) abovethis Section 2.16(b), then, without prejudice to any rights or remedies of any Issuing Bank L/C Issuer or any other Lender hereunder, all participation fees the Letter of Credit Fee payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of applicable L/C Issuer until such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated L/C Obligations are Cash Collateralized and/or cash collateralized; andreallocated;
(dc) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdingsthe Lead Borrower, the BorrowerL/C Issuers or the Swing Line Lender, each Swingline Lender and each applicable Issuing Bank as the case may be, each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure Swing Line Participations, L/C Participations and LC Exposure, as applicable, Protective Advance Participations of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Credit Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans Loans, Swing Line Participations, L/C Participations and Protective Advance Participations of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Adjusted Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from . The rights and remedies against a Defaulting Lender under this Section 2.16 are in addition to a Nonother rights and remedies that Borrowers, the Administrative Agent, the L/C Issuers, the Swing Line Lender and the non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from Lenders may have against such Revolving Lender’s having been a Defaulting Lender. The arrangements permitted or required by this Section 2.16 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the pro rata sharing provisions or otherwise.
Appears in 2 contracts
Samples: Credit Agreement (Dominion Textile (Usa), L.L.C.), Credit Agreement (Dominion Textile (Usa), L.L.C.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.12(b);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification (i) requiring the consent of all Lenders or all Lenders directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofhereof or (ii) that by its terms affects any Defaulting Lender disproportionately adversely relative to the other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Revolving Commitment) but only to the extent that such reallocation does not cause the sum Revolving Exposure of all any Non-Defaulting Revolving Lenders’ Revolving Exposures plus Lender to exceed such Non-Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that Commitment. Subject to Section 9.17, no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b2.12(c) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a2.12(b) and 2.12(b2.12(c) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such LC Exposure) and participation fees payable under Section 2.12(b2.12(c) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, unless in each case, case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each the Swingline Lender and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Bentley Systems Inc), Credit Agreement (Bentley Systems Inc)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(ai) commitment fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(bii) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any this clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(ciii) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i1) so long as no Event of Default has occurred and is continuing as to which the Administrative Agent has received written notice from a Borrower or a Revolving Lender at the time of any such reallocation, all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) under the applicable Revolving Facility of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders under such Revolving Lenders Facility in accordance with their respective Applicable Percentages (disregarding for this purpose the Revolving Commitments of any Defaulting Lenders for all purposes of such calculation) but only to the extent that the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Exposures under such Revolving Facility plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Revolving Facility does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation Commitments under this clause (i) 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 such Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocationFacility;
(ii2) if the reallocation described in clause (i1) above cannot, or can only partially, be effected, the Borrower applicable Borrowers shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated under such Revolving Facility and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks Bank only the portion of applicable Borrowers’ obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated under such Revolving Facility (after giving effect to any partial reallocation pursuant to clause (1) above) in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii3) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii2) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv4) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i1) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v5) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i1) or (ii2) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(div) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan under the applicable Revolving Facility and no the Issuing Bank shall not be required to issue, amend, renew amend or extend increase any Letter of CreditCredit under the applicable Revolving Facility, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of under such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, Revolving Facility will be fully 100% covered by the Revolving Commitments under such Revolving Facility of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower applicable Borrowers in accordance with Section 2.20(c2.22(a)(iii), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, renewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.22(a)(iii)(1) (and such Defaulting Lender shall not participate therein). .
(b) If (i) a Bankruptcy Event with respect to a parent entity of any Lender shall occur following the Restatement Effective Date and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank 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, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the applicable Borrowers or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder.
(c) In the event that the Administrative Agent, Holdingsthe Borrower Agent, the Borrower, each Swingline Lender and each applicable the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders under the applicable Revolving Facility shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans and participations in then outstanding Letters of Credit of the other Revolving Lenders under the applicable Revolving Facility as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will Percentage (whereupon such Lender shall cease to be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender).
Appears in 2 contracts
Samples: Restatement Agreement (Aptiv PLC), Restatement Agreement (Delphi Automotive PLC)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0211.02); provided provided, that any 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 all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) so long as no Default shall be continuing, all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and to the extent the sum of each non-Defaulting Lender’s Revolving Credit Exposure and LC Exposure does not exceed the sum of all Nonsuch non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocationCommitment;
(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 (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks applicable LC Bank only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in the last paragraph of Section 2.05(i) 8.01 for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) or the applicable LC Bank pursuant to Section 2.12(b)(x) (solely with respect to such portion of any fronting fee), in each case with respect to such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to in accordance with such reallocation; andnon-Defaulting Lenders’ Applicable Percentages;
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing LC Bank or any other Lender hereunder, all participation Facility Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s applicable LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing LC Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is reasonably satisfied that (i) the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c), and (ii) participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event or a Bail-In Action with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Bank 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, no LC Bank shall be required to issue, amend or increase any Letter of Credit, unless the applicable LC Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the applicable LC Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender Borrower and each applicable Issuing Bank the XX Xxxxx each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline LC Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Nisource Inc/De), Revolving Credit Agreement (Nisource Inc/De)
Defaulting Lenders. Notwithstanding any provision of this Credit Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);2.4 hereof.
(b) the Revolving The Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0213.10(a) hereof); provided provided, that any amendment, waiver or other modification requiring which by the terms of Section 13.10(a) requires the consent of all Lenders or each affected Lender which affects such Defaulting Lender or all Defaulting Lenders differently than other affected thereby shall, except as otherwise provided in Section 9.02, Lenders shall require the consent of such Defaulting Lender in accordance with the terms hereof;Lender.
(c) if If any LC L/C Exposure exists at the time such Revolving that a Lender becomes a Defaulting Lender, then:
(i) all or any part of such Defaulting Lender’s Pro Rata Share of the Swingline L/C Exposure (other than (xthe “Defaulting Lender’s L/C Exposure”) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Exposures portions of outstanding Loans, plus such the Pro Rata Shares of all non-Defaulting Lenders’ L/C Exposure, plus the Defaulting Lender’s Swingline Exposure and LC L/C Exposure does not exceed the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause , and (iy) 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 Revolving Lender as a result of the conditions set forth in Section 4.2 hereof are satisfied at such Non-Defaulting Revolving Lender’s increased exposure following such reallocationtime;
(ii) if the reallocation described in clause (iSection 2.19(c)(i) above cannot, or can only partially, be effected, then the Borrower shall shall, within one ten (10) Business Day Days following notice by the Administrative Agent (A) firstAgent, prepay cash collateralize the portion of such Defaulting Lender’s Swingline L/C Exposure that has not been reallocated and (Bafter giving effect to any partial reallocation pursuant to Section 2.19(c)(i) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated above) in accordance with the procedures set forth in Section 2.05(i2.14(j) hereof for so long as such LC the Defaulting Lender’s L/C Exposure is outstanding;
(iii) if the Borrower cash collateralizes collateralize any portion of such the Defaulting Lender’s LC L/C Exposure pursuant to clause (iiSection 2.19(c)(ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.14(h) hereof with respect to such portion of such the Defaulting Lender’s LC L/C Exposure for so long as such during the period that the Defaulting Lender’s LC L/C Exposure is cash collateralized;
(iv) if any portion the non-Defaulting Lenders’ Pro Rata Shares of the LC L/C Exposure of such Defaulting Lender is are reallocated pursuant to clause (i) abovethis Section 2.19(c), then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.4(a) and 2.12(bSection 2.14(h) hereof shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Percentages; and
(v) if all or any portion of such the Defaulting Lender’s LC L/C Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.19(c), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b2.14(h) hereof with respect to such the Defaulting Lender’s LC L/C Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of Bank until such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC L/C Exposure is reallocated cash collateralized and/or cash collateralized; andreallocated.
(d) so So long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders Issuing Bank shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral is provided by the Borrower in accordance with this Section 2.20(c2.19(d), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Non-non- Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) above (and such Defaulting Lender Lenders shall not participate therein). In the event that the Administrative Agent.
(e) So long as no Event of Default has occurred and is continuing, Holdings, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a any amount payable to such Defaulting Lender has adequately remedied all matters hereunder (whether on account of principal, interest, fees or otherwise and including any amount that caused would otherwise be payable to such Defaulting Lender pursuant to Section 12.2 but excluding payments to the applicable Revolving Defaulting Lender pursuant to be a Section 13.10(b) hereof) shall, in lieu of being distributed to such Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as retained by the Administrative Agent shall determine in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed determined by the affected partiesAdministrative Agent (i) first, no change hereunder from a to the payment of any amounts owing by such Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.the Administrative Agent hereunder,
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment Commitments of such Defaulting Lender pursuant to Section 2.12(a) and (b);
(b) such Defaulting Lender shall not have the Revolving right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure and, if applicable, Term Loan Commitment and Term Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02)) or under any other Loan Document; provided, that, except as otherwise provided that any in Section 9.02, 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 all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only (x) to the extent that the sum conditions set forth in Section 4.02 are satisfied at the time of all Nonsuch reallocation (and, unless the Borrower Representative shall have otherwise notified the Administrative Agent at such time, the Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at such time) and (y) to the extent that such reallocation does not, as to any non-Defaulting Revolving Lenders’ Revolving Exposures plus Lender, cause such non-Defaulting Lender’s Swingline Revolving Exposure and LC Exposure does not to exceed the sum of all Non-Defaulting its Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocationCommitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one (1) Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize collateralize, for the benefit of the Dollar Issuing Banks Bank, the portion of Borrowers’ obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.12(c) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b2.12(c) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b2.12(c) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender and a Revolving Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank shall not be required to issue, amend, renew renew, extend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the such Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower Borrowers in accordance with Section 2.20(c), and participating interests in Swingline Exposure related to any such funded newly made Swingline Loan or in LC Exposure related to any such issued, amended, renewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Lenders that are Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). .
(e) 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) the Swingline Lender or the Issuing Bank 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, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder.
(f) In the event that each of the Administrative Agent, Holdings, the Borrower, each the Swingline Lender and each applicable the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on the date of such date readjustment such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Clarus Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees pursuant to Section 2.04(a) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) the Revolving Unused Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.029.01); provided that any 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 all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swing Line Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Swing Line Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages Pro Rata Shares but only to the extent that (A) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Exposures Unused Commitments plus such Defaulting Lender’s Swingline Swing Line Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause Commitments and (iB) shall constitute a waiver or release of any claim of any party hereunder against a the amount so to be allocated to each non-Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Revolving Lender as a result of does not exceed such Non-Defaulting Revolving Lender’s increased exposure following such reallocationUnused Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Swing Line Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks Lender only the portion of Borrowers’ obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.18(k) for so long as such LC Exposure is outstanding;
(iii) if the any Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.04(c) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.04(a) and 2.12(bSection 2.04(c) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Pro Rata Shares; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b2.04(c) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Lender until and except to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Swing Line Bank shall not be required to fund any Swingline Loan Swing Line Advance and no the Issuing Bank Lender shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower Borrowers in accordance with Section 2.20(c2.19(c), and participating interests in any such funded Swingline Loan newly made Swing Line Advance or in any such issued, amended, renewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swing Line Bank or the 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, the Swing Line Bank shall not be required to fund any Swing Line Advance and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless the Swing Line Bank or the Issuing Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to the Swing Line Bank or the Issuing Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, HoldingsPPG, the Borrower, Swing Line Bank and the Issuing Lender each Swingline Lender and each applicable Issuing Bank each agrees reasonably determines that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Swing Line Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans Advances of the other Revolving Lenders (other than Competitive Loans and Swing Line Advances) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans Advances in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting LenderPro Rata Share.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a3.4(a);
(b) the Revolving Commitment and Revolving Exposure Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0211.1); provided provided, that any 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 all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure of such Defaulting Lender (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof3.3(c)) and LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e3.6(d) and 2.05(f3.6(e)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Revolving Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Exposures Extensions of Credit plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause , (iy) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a each non-Defaulting Lender, including any claim ’s Revolving Extensions of a NonCredit plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed such non-Defaulting Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following Revolving Commitment and (z) the conditions set forth in Section 6.2 are satisfied at such reallocationtime;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks Bank only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i3.6(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b3.6(k) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 3.4(a) and 2.12(bSection 3.6(k) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b3.6(k) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 105% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c3.6(j), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, renewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i3.7(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, Holdings, the Borrower, each the Swingline Lender and each applicable the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable such Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Revolving Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees payable under Section 2.12(a) shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) such Defaulting Lender shall not have the Revolving right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofhereunder;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize collateralize, for the benefit of the Dollar Issuing Banks Bank, the portion of Borrowers’ obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender 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 to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Issuing Bank shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower Borrowers in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein).
(i) a Bankruptcy Event 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) the Issuing Bank 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, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Bank shall have entered into arrangements with the Borrowers or such Lender, satisfactory to the Issuing Bank to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, Holdingsthe Borrowers, the Borrower, each Issuing Bank and the Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on the date of such date readjustment such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:.
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.02); , provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all each affected Lender which affects such Defaulting Lender differently than other affected Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereofLender;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the such Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving CommitmentsCommitments and (y) the conditions set forth in Section 4.02 are satisfied at such time; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;; 509265-1423-11080-10355930
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.20(c), the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) aboveSection 2.20(c), then the fees payable to the Lenders pursuant to Sections Section 2.12(a) and Section 2.12(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.20(c), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralized; andreallocated;
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will or newly made Swingline Loan shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.18(d) but excluding Section 2.19(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Bank or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan 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, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Bank or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Bank or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. 509265-1423-11080-10355930 In the event that the Administrative Agent, Holdings, the Borrower, each the Issuing Bank and the Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Audiovox Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment facility fees shall cease continue to accrue on the unfunded portion amount of the Commitment of such Defaulting Lender pursuant to Section 2.12(a) only to the extent of the Revolving Credit Exposure of such Defaulting Lender (excluding any portion thereof constituting Swingline Exposure or LC Exposure of such Defaulting Lender that is subject to reallocation under clause (c)(i) below);
(b) the Revolving Commitment and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.0210.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof)) and LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that the sum of all Non-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure (in each case, excluding the portion thereof referred to above) does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent or an Issuing Bank (provided that such Issuing Bank shall immediately also notify the Administrative Agent) (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated as set forth in such clause and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated as set forth in such clause in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to such reallocation; and;
(v) if all or any portion of such Defaulting Lender’s Swingline Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor reduced pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Swingline Lender or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender with respect to such portion of its Swingline Exposure shall be payable to the Swingline Lender until and to the extent that such Swingline Exposure is reallocated and/or reduced to zero; and
(vi) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender with respect to such portion of its LC Exposure, and all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s portion of its LC Exposure Exposure, shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the no Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, unless in each case, case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Non- Defaulting Revolving Lenders and/or cash collateral provided by the Borrower Borrowers in accordance with Section 2.20(c)clause (c) above, and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(iclause (c)(i) above (and such Defaulting Lender shall not participate therein). .
(e) In the event that (i) a Bankruptcy Event with respect to a Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (ii) the Swingline Lender or any Issuing Bank 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, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the applicable Borrower or such Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder.
(f) In the event that the Administrative Agent, Holdings, the Borrower, each Company the Swingline Lender and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in expressly required under Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof);
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (A) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving CommitmentsCommitments and (B) the Revolving Exposure of each non-Defaulting Lender immediately after giving effect to such reallocation would not exceed the Revolving Commitment of such non-Defaulting Lender; provided that no reallocation under this clause (i) 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 Nonnon-Defaulting Revolving Lender as a result of such Nonnon-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, without prejudice to any right or remedy available to it hereunder or under law, within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender 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 to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (i) a Bankruptcy Event or Bail-In Action with respect to a Revolving Lender Parent shall occur following the date hereof and for so long as such Bankruptcy Event or Bail-In Action shall continue or (ii) any Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Swingline Lender shall not be required to fund any Swingline Loan and such Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, unless such Swingline Lender or such Issuing Bank, as applicable, shall have entered into arrangements with the Borrower or the applicable Revolving Lender, satisfactory to such Swingline Lender or such Issuing Bank, as applicable, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further provided, further, that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Nonnon-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Chemours Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any LC Swingline Loan Exposure or Letter of Credit Exposure exists at the time such a Revolving Lender becomes a Defaulting Lender, Lender then:
(i) if the conditions precedent to the making of Loans set forth in Sections 5.02(a) and 5.02(b) are satisfied at such time (and, unless the Borrower shall have notified the Administrative Agent at such time, the applicable Revolving Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), all or any part of the such Swingline Loan Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion Letter of the Swingline Credit Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Revolving Lenders that are Non-Defaulting Revolving Lenders in accordance with their respective Applicable RL Percentages but only to the extent that (x) the sum of all Revolving Lenders’ that are Non-Defaulting Revolving Lenders Individual RL Exposures plus such Defaulting Lender’s Swingline Loan Exposure and Letter of Credit Exposure does not exceed the aggregate amount of all Non-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure Loan Commitments and LC Exposure does not exceed (y) immediately following the sum of all Non-Defaulting reallocation to a Revolving Lenders’ Revolving Commitments; provided Lender that no reallocation under this clause (i) 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 is a Non-Defaulting Revolving Lender as a result Lender, the Individual RL Exposure of such Non-Defaulting Revolving Lender’s increased exposure following Lender does not exceed its Revolving Loan Commitment at such reallocationtime;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Revolving Borrower shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay such Swingline Loan Exposure and (y) second, cash collateralize in a manner reasonably satisfactory to the portion applicable Issuing Lender such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (a)(i) above) in an aggregate amount equal to 100% of such Defaulting Lender’s Swingline Letter of Credit Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Letter of Credit Exposure is outstandingoutstanding (the “Letter of Credit Back-Stop Arrangements”);
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the applicable Revolving Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b3.01(c) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralizedLetter of Credit Exposure;
(iv) if any portion the Letter of Credit Exposure of the LC Exposure of such Non-Defaulting Lender Lenders is reallocated pursuant to clause (i) abovethis Section 1.18(a), then the fees Letter of Credit Fees payable to the Revolving Lenders pursuant to Sections 2.12(a) and 2.12(bSection 3.01(c) shall be adjusted to give effect to in accordance with such reallocationNon-Defaulting Lenders’ RL Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Letter of Credit Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 1.18(a), then, without prejudice to any rights or remedies of any Issuing Bank Lender or any other Revolving Lender hereunder, all participation fees Letter of Credit Fees payable under Section 2.12(b3.01(c) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the each Issuing Banks (and allocated among them ratably based on the amount of Lender until such Defaulting Lender’s LC Exposure attributable to Letters Letter of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(db) notwithstanding anything to the contrary contained in Section 1.01(g) or Section 2, so long as such any Revolving Lender is a Defaulting Lender, Lender (i) the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Loan Commitments of the Non-Defaulting Lenders, and participating interests in any such newly made Swingline Loan shall be allocated among Revolving Lenders that are Non-Defaulting Lenders in a manner consistent with Section 1.18(a)(i) (and Defaulting Lenders shall not participate therein) and (ii) no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Loan Commitments of the Non-Defaulting Lenders and/or cash collateral has been provided by the applicable Revolving Borrower in accordance with Section 2.20(c1.18(a), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will or newly made Swingline Loan shall be allocated among the Revolving Lenders that are Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i1.18(a)(i) (and such Defaulting Lender Lenders shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Issuing Lender and the Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable such Revolving Lender to be a Defaulting LenderLender (or if such Defaulting Lender is replaced in accordance with Section 1.13), then (i) the Swingline Loan Exposure and LC Exposure, as applicable, Letter of Credit Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment Loan Commitments and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that RL Percentage and (ii) so long as no adjustments will Event of Default then exists, all funds held as cash collateral pursuant to the Letter of Credit Back-Stop Arrangements shall thereafter be made retroactively with respect promptly returned to fees accrued or payments made by or on behalf the applicable Revolving Borrower. If the Revolving Loan Commitments have been terminated, all other Revolving Obligations have been paid in full and no Letters of Credit are outstanding, then, so long as no Event of Default then exists, all funds held as cash collateral pursuant to the Borrower while such Letter of Credit Back-Stop Arrangements shall thereafter be promptly returned to the applicable Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting LenderBorrower.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Credit Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting LenderLender :
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment Commitments of such Defaulting Lender pursuant to Section 2.12(a2.14(a);
(b) the Revolving Commitment and Revolving Exposure Commitments of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Majority Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0211.10); provided provided, that any 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 all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any DSR LC Exposure exists at the time such Revolving a DSR LC Lender becomes a Defaulting Lender, Lender (and to the extent that such DSR LC Exposure has not been converted into an LC Loan in accordance with this Credit Agreement) then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and Lender’s Proportionate Share (y) the portion of the Swingline Exposure referred to in clause (bCommitment) of the definition thereof) and DSR LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving DSR LC Lenders in accordance with their respective Applicable Percentages each such non-Defaulting DSR Lender’s Proportionate Share (Commitment) of the Total DSR LC Commitment (provided that, for the purposes of such calculation, the Defaulting Lender’s Proportionate Share (Commitment) of the Total DSR LC Commitment shall be disregarded), as applicable, but only to the extent that the sum of all Nonnon-Defaulting Revolving DSR LC Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and DSR LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving DSR LC Lenders’ Revolving DSR LC Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.14(c) with respect to such portion Defaulting Lenders’ Proportionate Share (Commitment) of such Defaulting Lender’s the DSR LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;Exposure; and
(iviii) if any portion of the DSR LC Exposure of such the non-Defaulting Lender DSR LC Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.14(a) and 2.12(bSection 2.14(c) shall be adjusted to give effect to in accordance with such reallocation; and
non-Defaulting DSR LC Lenders’ Proportionate Share (v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (bCommitment) of the definition of such term) or Total DSR LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.Commitment;
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment Revolving Commitment, if any, of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders Lenders, as applicable, have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided provided, that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all Lenders each affected thereby shallLender which affects such Defaulting Lender disproportionately when compared to the other affected Lenders, except as otherwise provided in Section 9.02or increases or extends the Revolving Commitment of such Defaulting Lender, shall require the consent of such Defaulting Lender in accordance with the terms hereofLender;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, and such Lender is a Revolving Lender, then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Lenders that are Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (A) the sum of all Nonsuch non-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no , (B) such reallocation under this clause (i) shall constitute a waiver or release does not cause the Revolving Credit Exposure of any claim of any party hereunder against a such non-Defaulting Lender arising from that Lender having become a to exceed such non-Defaulting Lender’s Revolving Commitment, including any claim of a Non-Defaulting Revolving Lender as a result of and (C) the conditions set forth in Section 4.02 are satisfied at such Non-Defaulting Revolving Lender’s increased exposure following such reallocationtime;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one (1) Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks Bank only the portion of Borrowers’ obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender 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 to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving LC Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.02); , provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all each affected Lender which affects such Defaulting Lender differently than other affected Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereofLender;
(cb) if any LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause Commitments and (iy) 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 Revolving Lender as a result of the conditions set forth in Section 4.02 are satisfied at such Non-Defaulting Revolving Lender’s increased exposure following such reallocationtime;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.04(a) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralizedExposure;
(iviii) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) aboveSection 2.10(b), then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.04(a) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; andor
(viv) if all or any portion of such Defaulting Lender’s LC Exposure is neither not reallocated nor cash collateralized pursuant to clause (i) or (ii) aboveSection 2.10(b), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b2.04(a) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralizedreallocated; and
(dc) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders Issuing Bank shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.10(b)(i) (and such Defaulting Lender Lenders shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender Borrower and each applicable the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline LC Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of participations in the other Revolving Lenders Lenders’ LC Exposure as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans LC Exposure in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided provided, that any 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 all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that Commitments and (y) no reallocation under this clause (i) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a non-Defaulting Lender, including any claim of a Non's Revolving Credit Exposures plus such non-Defaulting Revolving Lender as a result Lender's Applicable Adjusted Percentage of such NonDefaulting Lender’s Swingline Exposure and LC Exposure exceeds such non-Defaulting Lender's Revolving Lender’s increased exposure following such reallocationCommitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one two Business Day Days following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks Bank only the portion of Borrowers' obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the any Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the such Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower Borrowers in accordance with Section 2.20(c2.23(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, renewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.23(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank 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, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdingsthe U.S. Borrower, the Borrower, each Swingline Lender and each applicable the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Perrigo Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees the Commitment Fee shall cease to accrue on the unfunded portion of the Commitment of such Lender so long as it is a Defaulting Lender (except to the extent it is payable to the LC Issuer pursuant to Section 2.12(aclause (b)(v) below);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Loans or LC Exposure exists Obligations are outstanding at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) if no Default has occurred and is continuing, all or any part of the such outstanding Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) Loans and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender Obligations shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that the sum Facility Usage (excluding the Defaulting Lender’s Applicable Percentage of all Non-Defaulting Revolving Lenders’ Revolving Exposures the Facility Usage) plus such Defaulting Lender’s Applicable Percentage of such outstanding Swingline Exposure Loans and LC Exposure Obligations does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effectedeffected (whether by reason of the occurrence and continuance of a Default or the non-Defaulting Lenders’ Commitments being exceeded by such reallocation), the Borrower shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Applicable Percentage of the outstanding Swingline Exposure that has not been reallocated Loans and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar Applicable Percentage of the LC Exposure that has not been reallocated Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i) 2.11 for so long as such LC Exposure is Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such the Defaulting Lender’s Applicable Percentage of the LC Exposure Obligations is cash collateralized pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) any LC Participation Fee with respect to such portion the Applicable Percentage of such the Defaulting Lender’s LC Exposure for Obligations so long as such Defaulting Lender’s LC Exposure it is cash collateralized;
(iv) if any portion of the Defaulting Lender’s Applicable Percentage of the outstanding LC Exposure of such Defaulting Lender Obligations is reallocated to the non-Defaulting Lenders pursuant to clause (i) above, then the fees payable LC Participation Fee with respect to the Lenders pursuant to Sections 2.12(a) and 2.12(b) such portion shall be adjusted to give effect to such reallocationallocated among the non-Defaulting Lenders in accordance with their Applicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s Applicable Percentage of the outstanding LC Exposure Obligations is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.17(b), then, without prejudice to any rights or remedies of any Issuing Bank the LC Issuer or any other Lender hereunder, all participation fees the LC Participation Fee payable under Section 2.12(b) with respect to such Defaulting Lender’s Applicable Percentage of the outstanding LC Exposure Obligations shall be payable to the Issuing Banks (and allocated among them ratably based on LC Issuer until such portion of the amount of such Defaulting Lender’s Applicable Percentage of the outstanding LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure Obligations is reallocated cash collateralized and/or cash collateralized; andreallocated;
(dc) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank the LC Issuer shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower collateralized in accordance with Section 2.20(c2.17(b), and participating interests participations in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will or newly made Swingline Loan shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent accordance with Section 2.20(c)(i) their respective Applicable Percentages (and such Defaulting Lender Lenders shall not participate therein); and
(d) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.15 but excluding Section 10.13(b)) may, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent and, subject to any applicable requirements of Law, be applied (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the LC Issuer or Swingline Lender hereunder, (iii) third, to the funding of any Loan or the funding or cash collateralization of any participation in any Swingline Loan or Letter of Credit 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 (iv) fourth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations under Section 2.09(a) in respect of an LC Credit Extension which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations under Section 2.09(a) owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations under Section 2.09(a) owed to, any Defaulting Lender. In the event that the Administrative Agent, HoldingsBorrower, the BorrowerLC Issuer or the Swingline Lender, each Swingline Lender and each applicable Issuing Bank as the case may be, each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Applicable Percentages of the outstanding Swingline Exposure Loans and LC Exposure, as applicable, Obligations of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from . The rights and remedies against a Defaulting Lender under this Section 2.17 are in addition to a Nonother rights and remedies that Borrower, the Administrative Agent, the LC Issuer, the Swingline Lender and the non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from Lenders may have against such Revolving Lender’s having been a Defaulting Lender. The arrangements permitted or required by this Section 2.17 shall be permitted under this Agreement, notwithstanding any limitation on Liens or the pro rata sharing provisions or otherwise.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees the Facility Fee shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (i) the sum of all Non-Defaulting Revolving Lenders’ Revolving Total Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no Commitments and (ii) such reallocation under this clause (i) shall constitute a waiver or release does not result in the Total Exposure 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 Revolving Lender as a result of exceeding such Non-Defaulting Revolving Lender’s increased exposure following such reallocationCommitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation fees LC Participation Fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees LC Participation Fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees Facility Fees that otherwise would have been payable under pursuant to Section 2.12(a) to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such LC Exposure) and LC Participation Fees payable pursuant to Section 2.12(b) to such Defaulting Lender with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower Borrowers in accordance with Section 2.20(c2.21(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.21(c) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender Company and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Hess Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment facility fees shall cease continue to accrue on the unfunded portion amount of the Commitment of such Defaulting Lender pursuant to Section 2.12(a) only to the extent of the Revolving Credit Exposure of such Defaulting Lender (excluding any portion thereof constituting Swingline Exposure or LC Exposure of such Defaulting Lender that is subject to reallocation under clause (c)(i) below);
(b) the Commitment, the Revolving Commitment Credit Exposure and Revolving Exposure the aggregate principal amount of outstanding Competitive Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof2.05(c)) and LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e2.06(d) and 2.05(f2.06(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that the sum of all Non-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure (in each case, excluding the portion thereof referred to above) does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated as set forth in such clause and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated as set forth in such clause in accordance with the procedures set forth in Section 2.05(i2.06(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to such reallocation; and;
(v) if all or any portion of such Defaulting Lender’s Swingline Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor reduced pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Swingline Lender or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender with respect to such portion of its Swingline Exposure shall be payable to the Swingline Lender until and to the extent that such Swingline Exposure is reallocated and/or reduced to zero; and
(vi) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender with respect to such portion of its LC Exposure, and all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s portion of its LC Exposure Exposure, shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower Borrowers in accordance with Section 2.20(c)clause (c) above, and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(iclause (c)(i) above (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank 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, the Swingline Lender shall not be required to fund any Swingline Loan, and such Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrowers or the applicable Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdingsthe Company, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Verisign Inc/Ca)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment Commitments of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the Revolving right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite the Supermajority Revolving Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofhereunder;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders of the applicable Class in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Exposures under such Class of Commitments plus such Defaulting Lender’s Swingline Exposure and LC Exposure under such Class of Commitments does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that Commitments of such Class, (y) no reallocation under this clause (i) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a non-Defaulting Lender, including any claim ’s Revolving Exposure under such Class of a Non-Defaulting Revolving Lender Commitments is increased above such Lender’s Commitment of such Class as a result thereof and (z) no Event of such Non-Defaulting Revolving Lender’s increased exposure following such reallocationDefault has then occurred and is continuing;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one Business Day following notice by the Administrative Agent (Ax) first, in the case of the U.S. Borrower, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize Cash Collateralize, for the benefit of the Dollar applicable Issuing Banks the portion of Bank, such Borrowers’ obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated under the applicable Class of Commitments (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.06(k) for so long as such LC Exposure is outstanding;
(iii) if the a Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the such Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralizedCash Collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender 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 to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized Cash Collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralizedCash Collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders applicable Issuing Bank under the applicable Facility shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral Cash Collateral will be provided by the Borrower applicable Borrower(s) in accordance with Section 2.20(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, renewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the Second Amendment and Restatement Effective Date and for so long as such event shall continue or (ii) any Issuing Bank or the Swingline 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 Bank shall not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, Holdingsthe Borrowers, the Borrowerapplicable Issuing Banks and, each in the case of the U.S. Facility, the Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and and/or LC Exposure, as applicable, Exposure of the Revolving Lenders under the applicable Facility shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on the date of such date readjustment such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Levi Strauss & Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment facility fees shall cease continue to accrue on the unfunded portion amount of the Commitment of such Defaulting Lender pursuant to Section 2.12(a) only to the extent of the Revolving Credit Exposure of such Defaulting Lender (excluding any portion thereof constituting Swingline Exposure or LC Exposure of such Defaulting Lender that is subject to reallocation under clause (c)(i) below);
(b) the Revolving Commitment and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.0210.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof)) and LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Non-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure (in each case, excluding the portion thereof referred to above) does not exceed the sum of all Non-Defaulting Revolving Lenders’ Commitments and (y) each Non-Defaulting Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocationCredit Exposure does not exceed its Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent or an Issuing Bank (provided that such Issuing Bank shall immediately also notify the Administrative Agent) (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated as set forth in such clause and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated as set forth in such clause in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to such reallocation; and;
(v) if all or any portion of such Defaulting Lender’s Swingline Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor reduced pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Swingline Lender or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender with respect to such portion of its Swingline Exposure shall be payable to the Swingline Lender until and to the extent that such Swingline Exposure is reallocated and/or reduced to zero; and
(vi) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender with respect to such portion of its LC Exposure, and all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s portion of its LC Exposure Exposure, shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the no Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, unless in each case, case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower Borrowers in accordance with Section 2.20(c)clause (c) above, and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(iclause (c)(i) above (and such Defaulting Lender shall not participate therein). .
(e) In the event that (i) a Bankruptcy Event with respect to a Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (ii) the Swingline Lender or any Issuing Bank 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, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the applicable Borrower or such Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder.
(f) In the event that the Administrative Agent, Holdings, the Borrower, each Company the Swingline Lender and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); , provided that any 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 all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists exists, or any Overadvance or Protective Advance is outstanding, at the time such Revolving Lender becomes a Defaulting Lender, then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its Exposure, LC Exposure, participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to interest in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its Overadvances or participation as contemplated by Sections 2.05(e) and 2.05(f)) interest in Protective Advances of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that and so long as (A) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Exposures Exposure plus such Defaulting Lender’s Swingline Exposure Exposure, LC Exposure, participation interest in Overadvances and LC Exposure participation interest in Protective Advances does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no , (B) the sum of any non-Defaulting Lender’s Revolving Exposure plus such non-Defaulting Lender’s Applicable Percentage of the Defaulting Lender’s Swingline Exposure, LC Exposure, participation interest in Overadvances and participation interest in Protective Advances does not exceed such non-Defaulting Lender’s Revolving Commitment and (C) the conditions set forth in Sections 4.02(a) and (b) are satisfied as of the date of such reallocation under (assuming, solely for purpose of this clause (i) shall constitute C), that such reallocation is 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 Revolving Lender “Borrowing” as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocationterm is used in Section 4.02);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one Business Day following notice by the Administrative Agent (Aw) first, prepay such Swingline Exposure (or, if agreed by the Swingline Lender, cash collateralize the Swingline Exposure of the Defaulting Lender on terms satisfactory to the Swingline Lender), (x) second, prepay such Overadvance (or, if agreed by the Administrative Agent, cash collateralize that portion of such Overadvance attributable to such Defaulting Lender’s Swingline Exposure participation interest therein on terms satisfactory to the Administrative Agent, (y), third, prepay such Protective Advance (or, if agreed by the Administrative Agent, cash collateralize that has not been reallocated portion of such Protective Advance attributable to such Defaulting Lender’s participation interest therein on terms satisfactory to the Administrative Agent and (Bz) secondfourth, cash collateralize for the benefit of the Dollar Issuing Banks only the portion of applicable Borrower’s obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the either Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Revolving Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.11(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ respective Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Revolving Lender hereunder, all participation fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is so reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Administrative Agent shall not be required to fund any Overadvance or Protective Advance, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank Banks shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, case unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, Swingline Exposure and participation interest in Overadvances and Protective Advances will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.20(c), and participating participation interests in any such funded newly-made Swingline Loan Loan, Overadvance or in Protective Advance or any such newly-issued, amended, renewed amended or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Revolving Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Administrative Agent, the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Revolving Lender commits to extend credit, then the Administrative Agent shall not be required to fund any Overadvance or Protective Advance, the Swingline Lender shall not be required to fund any Swingline Loan and such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless (A) the Administrative Agent, the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the applicable Borrower or such Lender, satisfactory to the Administrative Agent, the Swingline Lender or such Issuing Bank, as the case may be, to address any risk to it in respect of such Revolving Lender hereunder or (B) in the case of an event specified in clause (i) of this paragraph, the requirements set forth in Section 2.20(d) are satisfied in respect of such Revolving Lender, in which case such Revolving Lender shall be deemed to be a Defaulting Lender for purposes of this Section 2.20. In the event that the Administrative Agent, Holdings, the Borrower, each the Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure, the LC Exposure and LC Exposure, as applicable, the participations in Overadvances and Protective Advances of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Usg Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) such Defaulting Lender shall not have the Revolving right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite the Supermajority Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02)) or under any other Loan Document; provided, that, except as otherwise provided that any in Section 9.02, 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 all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the applicable Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and applicable LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (w) the conditions set forth in Section 4.02 are satisfied at the time of such reallocation (and, unless the Borrower Representative shall have otherwise notified the Administrative Agent at such time, the Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at such time), (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause , (iy) shall constitute a waiver or release the sum 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 Nonall non-Defaulting Lenders’ U.S. Revolving Lender as a result Exposure plus such Defaulting Lenders’ U.S. Swingline Exposure and U.S. LC Exposure does not exceed the total of such Nonall non-Defaulting Lenders’ U.S. Revolving Lender’s increased exposure following Commitment and (z) the sum of all non-Defaulting Lenders’ Canadian Revolving Exposure plus such reallocationDefaulting Lenders’ Canadian Swingline Exposure and Canadian LC Exposure does not exceed the total of all non-Defaulting Lenders’ Canadian Revolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one (1) Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s applicable Swingline Exposure that has not been reallocated and (By) second, cash collateralize collateralize, for the benefit of the Dollar Issuing Banks Bank, the portion of Borrowers’ obligations corresponding to such Defaulting Lender’s Dollar applicable LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of Defaulting Lender’s applicable LC Exposure during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s applicable LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender 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 to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving an Applicable Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank shall not be required to issue, amend, renew renew, extend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the such Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower Borrowers in accordance with Section 2.20(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, renewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event 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) the Swingline Lender or the Issuing Bank 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, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that each of the Administrative Agent, Holdingsthe Borrower Representative, the Borrower, each Issuing Bank and the Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on the date of such date readjustment such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.11(a) if such Lender is a Defaulting Lender pursuant to (a) or (b) of the definition thereof;
(b) in the Revolving Commitment and Revolving Exposure of event that such Defaulting Lender shall not fail to respond to any request for any waiver, consent, amendment or modification requested hereunder within twenty (20) days of written request from the Administrative Agent, such Defaulting Lender shall be included in deemed to have consented or agreed to such requested waiver, consent amendment or modification, as the case may be, for purposes of determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder provided the foregoing shall not apply with respect to amendments or under any other Loan Document (including any consent to any amendment, waiver or other modification waivers pursuant to Section 9.029.02(b)(i); provided that any amendment, waiver 9.02(b)(ii), or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof9.02(b)(iv);
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the such Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that as a result thereof (x) the sum of all Non-Defaulting Revolving Lenders’ Revolving Exposures Credit Exposure plus such Defaulting Lender’s Swingline Exposure and LC Exposure does would not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation , (y) the sum of each Non-Defaulting Lender’s Credit Exposure plus such Non-Defaulting Lender’s share under this clause (i) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a such Defaulting Lender, including any claim of a Non-Defaulting Revolving Lender as a result of ’s Swingline Exposure and LC Exposure would not exceed such Non-Defaulting Revolving Lender’s increased exposure following Commitment and (z) the conditions set forth in Section 3.02 are satisfied at such reallocation;time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effectedaffected, the Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is are outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) abovethis Section 2.21(c), the Borrower Company shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) 2.11 with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is are cash collateralized;; and
(iv) if any portion of the LC Exposure of such the Non-Defaulting Lender is Lenders are reallocated pursuant to clause (i) abovethis Section 2.21(c), then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) Section 2.11 shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of reallocations in accordance with such Non-Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; andLenders’ Applicable Percentages;
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower collateralized in accordance with this Section 2.20(c2.21 (and, if applicable, Section 2.05(i), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will or newly made Swingline Loan shall be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.21(c)(i) (and such Defaulting Lender Lenders shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a ; and
(e) any amount payable to such Defaulting Lender has adequately remedied all matters hereunder (whether on account of principal, interest, fees or otherwise and including any amount that caused the applicable Revolving would otherwise be payable to such Defaulting Lender pursuant to be a Section 2.17 but excluding Section 2.18(b) shall, in lieu of being distributed to such Defaulting Lender, then subject to any applicable Requirement of Law, be applied (i) first, to the Swingline Exposure and LC Exposure, as applicable, payment of the Revolving Lenders shall be readjusted any amounts owing by such Defaulting Lender to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for hereunder, (ii) second, pro rata, to the payment of any amounts then owing by such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.the Issuing Banks hereunder, and
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender, to the extent permitted by applicable law:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.06(a) shall cease to accrue;
(b) the Revolving Commitment and Revolving the Aggregate LC Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided provided, that any 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 all Lenders or all Lenders affected thereby shall, except as otherwise provided described in Section 9.0210.02(b)(i), require the consent of (ii) (other than with respect to interest, fees and other amounts (other than principal and reimbursement obligations), unless such Defaulting Lender in accordance with is being treated differently than the terms hereofother Lenders) or (iii), to the extent such Defaulting Lender is directly affected thereby;
(c) if any Participant LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender and no Default or Event of Default has occurred and is continuing then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and Participant LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that such reallocation does not result in (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Exposures Aggregate LC Exposure plus such Defaulting Lender’s Swingline Exposure and Participant LC Exposure does not exceed exceeding the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving CommitmentsCommitments or (y) the Dollar Equivalent of any non-Defaulting Lender’s LC Exposure exceeding its Commitment; provided that that, subject to the provisions of Section 10.19, no reallocation under this clause (i) 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 Nonnon-Defaulting Revolving Lender as a result of such Nonnon-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower applicable Specified Account Party shall within one Business Day following notice by the Administrative Agent (A) first, prepay ensure that the portion Borrowing Base includes an amount of such cash equal to or greater than the Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar Participant LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i(after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Participant LC Exposure is outstanding;
(iii) if the Borrower applicable Account Party cash collateralizes any portion of such Defaulting Lender’s Participant LC Exposure in accordance with clause (ii) above that has not been reallocated pursuant to clause (iii) above, the Borrower no Specified Account Party shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) 2.06 with respect to such portion of Defaulting Lender’s Participant LC Exposure during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s Participant LC Exposure is cash collateralized;
(iv) if any portion of the Participant LC Exposure of such the non-Defaulting Lender 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) Section 2.06 shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s Participant LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation fees payable under Section 2.12(b) 2.06 with respect to such Defaulting Lender’s Participant LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Administrative Agent until and to the extent that such Participant LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank Lender with respect to a Fronted Letter of Credit or Non-Syndicated Letter of Credit shall be required to issue, amend, renew amend or extend increase any Fronted Letter of Credit or Non-Syndicated Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Participant LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower Obligors in accordance with Section 2.20(c)clause (c) above, and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Fronted Letter of Credit will or Non-Syndicated Letter of Credit shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(iclause (c)(i) above (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, HoldingsXL Group and each Issuing Lender each agrees in writing that a Lender is no longer a Defaulting Lender, the BorrowerAdministrative Agent will so notify the parties hereto, each Swingline 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 participations in LC Disbursements of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the funded and each applicable Issuing Bank each agrees that a Defaulting unfunded participations in Letters of Credit to be held pro rata by the Lenders in accordance with the Commitments hereunder (without giving effect to Section 2.12(c)(i)), whereupon such Lender has adequately remedied all matters that caused the applicable Revolving Lender will cease to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower any Account Party while such Revolving that Lender was a Defaulting Lender; provided further and provided, further, that, subject to the terms of Section 10.19, except as to the extent otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving that Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment facility fees shall cease to accrue on the unfunded portion unused amount of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that the sum of all Non-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Paying Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender 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 to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such LC Exposure) and participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, unless in each case, case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c2.23(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.23(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Lender Parent shall have occurred following the Administrative date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank 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, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Paying Agent, Holdings, the Borrower, each the Swingline Lender and each applicable Issuing Bank each agrees agree (provided that the Borrower’s agreement shall not be required if an Event of Default has occurred and is continuing) that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Paying Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Macy's, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)3;
(b) the Revolving Commitment and Revolving Exposure Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0212.12); provided provided, that any 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 all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any LC Swingline Exposure or L/C Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline L/C Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Revolving Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Exposures Extensions of Credit plus such Defaulting Lender’s Swingline Exposure and LC L/C Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender 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 to give effect to such reallocation; Commitments and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (InfraREIT, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees Commitment Interest pursuant to Section 2.11(a) and Ticking Interest pursuant to 2.11(b) shall cease to accrue on the unfunded unutilized portion of the applicable Commitment of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) the Revolving Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided provided, that any 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 all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that Commitments and (y) no reallocation under this clause (i) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a non-Defaulting Lender, including any claim of a Non’s Revolving Credit Exposures plus such non-Defaulting Revolving Lender as a result Lender’s Applicable Adjusted Percentage of such NonDefaulting Lender’s Swingline Exposure and LC Exposure exceeds such non-Defaulting Revolving Lender’s increased exposure following such reallocationCommitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Revolving Borrower shall within one two Business Day Days following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks Bank only the portion of Revolving Borrower’s obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Revolving Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Revolving Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Revolving Borrower in accordance with Section 2.20(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, renewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). .
(e) In the event that the Administrative Agent, Holdingsthe Revolving Borrower, the Borrower, each Swingline Lender and each applicable the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then (i) 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 such Lender will cease to be a Defaulting Lender; provided, however, 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 the Revolving Borrower or any other party hereunder arising from such Lender’s having been a Defaulting Lender, and the Revolving Borrower and such other party shall retain and reserve any such claim, and (ii) the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding (a) If any provision Letters of this Agreement to Credit are outstanding at the contrary, if any Revolving time a Lender becomes a Defaulting Lender, then and the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall Commitments have not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender been terminated in accordance with the terms hereof;
(c) if any LC Exposure exists at the time such Revolving Lender becomes a Defaulting LenderSection 6.01, then:
(i) so long as no Default has occurred and is continuing, all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such each Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion Lender’s ratable share of the Swingline Exposure referred to in clause (b) Available Amount of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) outstanding Letters of such Defaulting Lender Credit shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages Ratable Shares (disregarding any Defaulting Lender’s Commitment) but only to the extent that the sum of (A) the aggregate principal amount of all Advances made by such Non-Defaulting Revolving Lenders (in their capacity as Lenders) and outstanding at such time, plus (B) such Non-Defaulting Lenders’ Revolving Exposures Ratable Shares (before giving effect to the reallocation contemplated herein) of the Available Amount of all outstanding Letters of Credit, plus (C) the aggregate principal amount of all Advances made by each Issuing Bank pursuant to Section 2.04(c) that have not been ratably funded by such Non-Defaulting Lenders and outstanding at such time, plus (D) such Defaulting Lender’s Swingline Exposure and LC Exposure Ratable Share of the Available Amount of such Letters of Credit, does not exceed the sum total of all Non-Defaulting Revolving Lenders’ Revolving Commitments; Commitments and, after giving effect thereto with respect to each Non-Defaulting Lender, the sum of the Advances, participations in Letters of Credit (including any Advances made by an Issuing bank pursuant to Section 2.04(c) that have not been ratably funded by the Lenders and outstanding at such time) does not exceed such Non-Defaulting Lender’s Commitment, provided subject to Section 9.20, that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following written notice by the Administrative Agent (A) firstany Issuing Bank, prepay the portion of Cash Collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and Ratable Share of the Available Amount of such Letters of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) by paying cash collateral to such Issuing Bank; provided that, so long as no Default shall be continuing, such cash collateral shall be released promptly upon the earliest of (A) the reallocation of the Available Amount of outstanding Letters of Credit among Non-Defaulting Lenders in accordance with clause (i) above, (B) second, cash collateralize for the benefit termination of the Dollar Defaulting Lender status of the applicable Lender or (C) such Issuing Banks Bank’s good faith determination that there exists excess cash collateral (in which case, the portion of amount equal to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstandingexcess cash collateral shall be released);
(iii) if the Borrower cash collateralizes any portion Ratable Shares of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion Letters of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion Credit of the LC Exposure of such Non-Defaulting Lender is Lenders are reallocated pursuant to clause (i) abovethis Section 2.21(a), then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.05(b)(i) shall be adjusted to give effect to in accordance with such reallocation; andNon-Defaulting Lenders’ Ratable Shares of Letters of Credit;
(viv) if all or any portion of such Defaulting Lender’s LC Exposure Ratable Share of Letters of Credit is neither Cash Collateralized nor reallocated nor cash collateralized pursuant to clause (i) or (ii) abovethis Section 2.21(a), then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation Letter of Credit fees payable under Section 2.12(b2.05(b)(i) with respect to such Defaulting Lender’s LC Exposure Ratable Share of Letters of Credit shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of Bank until such Defaulting Lender’s LC Exposure attributable to Ratable Share of Letters of Credit issued by each Issuing Bankis Cash Collateralized and/or reallocated; and
(v) until and to the extent that such LC Exposure the Available Amount of any outstanding Letter of Credit is reallocated and/or cash collateralized; andCash Collateralized by the Borrowers pursuant to this Section 2.21, the Borrowers shall not be required to pay any commission otherwise payable pursuant to Section 2.05(b)(i) on that portion of the Available Amount that is so Cash Collateralized.
(db) so So long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, Credit unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Credit Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c)applicable Borrower, and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.21(a)(i) (and such Defaulting Lender Lenders shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment Commitments and Revolving Exposure Credit Exposures of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided provided, that any 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 all Lenders each Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving US Tranche Lenders in accordance with their respective Applicable Percentages US Tranche Percentages, but only to the extent that the sum of all Nonnon-Defaulting Revolving US Tranche Lenders’ US Tranche Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving US Tranche Lenders’ Revolving US Tranche Commitments; provided and all or any part of the LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Combined Tranche Percentages, but only to the extent that no reallocation under this clause (i) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a non-Defaulting Lender’s Revolving Credit Exposure of either Tranche, including any claim as increased by its share under such Tranche of a Nonsuch Defaulting Lender’s LC Exposure would not exceed such non-Defaulting Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following Commitment under such reallocationTranche;
(ii) if the reallocation reallocations described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and and/or (By) second, cash collateralize for the benefit of the Dollar Issuing Banks only the portion of Borrowers’ obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(b) shall be adjusted in accordance with the amounts of such LC Exposure allocated to give effect to such reallocationthe non-Defaulting Lenders; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Banks or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure Swingline Exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower Borrowers in accordance with Section 2.20(c2.21(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, renewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders of the applicable Tranche in a manner consistent with Section 2.20(c)(i2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or an Issuing Bank 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, the Swingline Lender shall not be required to fund any Swingline Loan and such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, reasonably satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each the Swingline Lender and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment Commitments and on such date such Revolving Lender shall purchase at par such of the Revolving US Tranche Loans (other than Swingline Loans) and/or Global Tranche Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender the Lenders to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lendertheir applicable Tranche Percentages.
Appears in 1 contract
Samples: Five Year Revolving Credit Facility Agreement (Albany International Corp /De/)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded unused portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders, the Required Lenders or any other requisite the Supermajority Lenders have taken or may take any action hereunder or under any other Loan Document Documents (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any LC Exposure, Protective Advance Exposure and Overadvance Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and Lender’s LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(fSection 2.06(d)) of ), Protective Advance Exposure (other than any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(b)) and Overadvance Exposure (other than any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.05(b)) shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages Percentages, but only to the extent that the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline LC Exposure, Protective Advance Exposure and LC Overadvance Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent Agent, without prejudice to any rights or remedies of the Borrowers against such Defaulting Lender, (A) first, prepay the portion of such Defaulting Lender’s Swingline Overadvance Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated and so reallocated, (B) second, cash collateralize for the benefit of the Dollar Issuing Banks prepay the portion of such Defaulting Lender’s Dollar LC Protective Advance Exposure that has not been so reallocated, and (C) third, cash collateralize such Defaulting Lender’s LC Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been so reallocated in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay any letter of credit participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s cash collateralized LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (ic)(i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure (other than any portion thereof referred to in the parenthetical in clause (i) above) is neither reallocated nor cash collateralized nor reallocated pursuant to clause (ic)(i) or (iic)(ii) above, then, without prejudice to any rights or remedies of any the applicable Issuing Bank or any other Lender hereunder, all letter of credit participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew renew, extend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower Borrowers in accordance with Section 2.20(c)clause (c) of this Section, and participating interests in any such funded Swingline Loan or in any such newly issued, amended, renewed renewed, extended or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with clause (c)(i) of this Section 2.20(c)(i) (and such Defaulting Lender Lenders shall not participate therein). In the event and on the date that each of the Administrative Agent, Holdings, the BorrowerCompany, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Protective Advance Exposure and Overadvance Exposure of the Revolving other Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Ascena Retail Group, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.4;
(b) the Revolving Credit Commitment and Revolving Aggregate Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite the Majority Revolving Facility Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.0210.1); provided provided, that any 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 all Lenders each Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of (and such Defaulting Lender in accordance with the terms hereofis affected);
(c) if any LC Exposure exists L/C Obligations exist at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender L/C Obligations shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Revolving Credit Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Aggregate Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure L/C Obligations does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving CommitmentsCredit Commitments and (y) the conditions set forth in Section 5.3 are satisfied at such time; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of cash collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and L/C Obligations (Bafter giving effect to any partial reallocation pursuant to clause (i) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated above) in accordance with the procedures set forth in Section 2.05(i) 8 for so long as such LC Exposure is L/C Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to clause (ii) aboveSection 2.21(c), the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b3.3(a) with respect to such portion of Defaulting Lender’s L/C Obligations during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is L/C Obligations are cash collateralized;
(iv) if any portion the L/C Obligations of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (i) aboveSection 2.21(c), then the fees payable to the Lenders pursuant to Sections 2.12(a) Section 2.4 and 2.12(bSection 3.3(a) shall be adjusted to give effect to such reallocationin accordance with the non-Defaulting Lenders’ Revolving Credit Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is L/C Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.21(c), then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Credit Commitment that was utilized by such L/C Obligations) and letter of credit fees payable under Section 2.12(b3.3(a) with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of Lender until such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated L/C Obligations are cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Revolving Refinancing Amendment (Sba Communications Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue pursuant to Section 2.11(a) on the unfunded portion unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part so long as no Event of Default has occurred and is continuing, the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that the sum of all Non-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided provided, that subject to Section 9.18, no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if (x) an Event of Default has occurred and is continuing or (y) the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a2.11(a) and 2.12(b2.11(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such LC Exposure) and participation fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, unless in each case, case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower Borrowers in accordance with Section 2.20(c2.19(c), and, so long as no Event of Default has occurred and is continuing, participating interests in any such funded Swingline Loan or in any such issued, amended, renewed reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (a) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (b) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrowers or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdingsthe Borrowers, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees pursuant to Section 2.10(a) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);the extent, and during the period, such Lender is a Defaulting Lender; and
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, two-thirds of the Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.02, except for any amendment or waiver described in Section 9.02(b)(i), (ii) or (iii)); provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders, two-thirds of the Lenders or all each affected Lender which affects such Defaulting Lender differently than other Lenders or affected thereby shall, except Lenders (as otherwise provided in Section 9.02, applicable) shall require the consent of such Defaulting Lender in accordance with the terms hereof;Lender.
(c) if any LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that , (y) no reallocation under this clause (i) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a non-Defaulting Lender, including any claim of a Non-Defaulting Revolving Lender as a result of ’s Credit Exposure will exceed such Non-Defaulting Revolving Lender’s increased exposure following Commitment, and (z) the conditions set forth in Section 4.02 are satisfied at such reallocationtime (and unless the Borrower has 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);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, without prejudice to any right or remedy available to it hereunder or under law, within one three Business Day Days following notice by the Administrative Agent (A) firstAgent, prepay the portion of Cash Collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.04(k) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.10(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralizedCash Collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.10(a) and 2.12(bSection 2.10(b) shall be adjusted to give effect to in accordance with such reallocation; andnon-Defaulting Lenders’ Applicable Percentages;
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither Cash Collateralized nor reallocated nor cash collateralized pursuant to clause (i) or (ii) abovethis Section 2.17(c), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated Cash Collateralized and/or cash collateralizedreallocated; and
(vi) subject to Section 9.16, 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 Lender’s increased exposure following such reallocation
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders Issuing Bank shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral Cash Collateral will be provided by the Borrower in accordance with Section 2.20(c2.17(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.17(c)(i) (and such Defaulting Lender Lenders shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender Borrower and each applicable the Issuing Bank each agrees in writing that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then then, on the Swingline date of such agreement, such Lender shall no longer be deemed a Defaulting Lender, the Borrower shall no longer be required to Cash Collateralize any portion of such Lender’s LC Exposure and Cash Collateralized pursuant to Section 2.17(c)(ii) above, the LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such the portion of the Revolving Loans of the other Revolving Lenders and take such other actions as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments Percentage in effect immediately after giving effect to such agreement, whereupon such Lender will cease to be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, that except as to the extent otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving LenderXxxxxx’s having been a Defaulting Lender. Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) or received by Administrative Agent from a Defaulting Lender, will be applied at such time or times as may be determined by Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank hereunder; third, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent; fourth, if so determined by Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; fifth, to the payment of any amounts owing to Lenders or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender or any Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; sixth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and seventh, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if: (x) such payment is a payment of the principal amount of any Loans or L/C Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share; and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment will be applied solely to pay the Loans of, and L/C Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Disbursements are held by the applicable Lenders pro rata in accordance with the Revolving Credit Exposures 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 2.17 are hereby deemed paid to and redirected by such Defaulting Lender, each Issuing Bank and each Lender irrevocably consents hereto.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Capital Southwest Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.02); , provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all each affected Lender which affects such Defaulting Lender differently than other affected Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereofLender;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the such Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders of the same Class (if any) in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments, (y) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) shall constitute a waiver or release Credit Exposures of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a such Class plus such Defaulting Lender, including any claim ’s Swingline Exposure of a Nonsuch Class and LC Exposure does not exceed the total of such non-Defaulting Revolving Lender as a result Lenders’ Commitments of such Non-Defaulting Revolving Lender’s increased exposure following Class and (z) the conditions set forth in Section 4.02 are satisfied at such reallocationtime;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause clauses (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralizedreallocated; and
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower Borrowers in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will or newly made Swingline Loan shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender Lenders shall not participate therein). In the event that the Administrative Agent, Holdingsthe Borrowers, the Borrower, each Swingline Lender and each applicable the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Schweitzer Mauduit International Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.8(a);
(b) the Revolving Commitment and Revolving Exposure Extensions of Credit of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.0210.1); provided , provided, that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all each affected Lender which affects such Defaulting Lender differently than other affected Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereofLender;
(c) if any Swingline Exposure, Protective Advance Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the such Swingline Exposure, Protective Advance Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders that are non-Defaulting Lenders in accordance with their respective Applicable Revolving Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure Extensions of Credit does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving CommitmentsCommitments and (y) the conditions set forth in Section 5.25.3 are satisfied at such time; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Protective Advance Exposure (after giving effect to any partial reallocation pursuant to clause (i) above), (y) second, prepay such Defaulting Lender’s Swingline Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) and (Byz) secondsecondthird, cash collateralize for the benefit of the Dollar Issuing Banks the portion 100% of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with a manner reasonably satisfactory to the procedures set forth in Section 2.05(i) Administrative Agent and the Issuing Lender for so long as such LC Exposure is outstanding, the prepayment or cash collateralization of which may be financed with proceeds of Revolving Loans or Swingline Loans provided, that the conditions precedent set forth in Section 5.25.3 are satisfied at such time;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause Section 2.24(c) (ii) above), the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b3.3(a) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Revolving Lenders is reallocated pursuant to clause (i) aboveSection 2.24(c)(i), then the fees payable to the Revolving Lenders pursuant to Sections 2.12(aSection 2.8(a) and 2.12(b3.3(a) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Revolving Lenders’ Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.24(c), then, without prejudice to any rights or remedies of any Issuing Bank Lender or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b3.3(a) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Lender until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.reallocated;
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.02); , provided that any amendment(i) such Defaulting Lender’s Commitment may not be increased or extended without its consent and (ii) the principal amount of, waiver or other modification requiring interest or fees payable on, such Defaulting Lender’s Loans or participations in LC Disbursements may not be reduced or excused or the consent scheduled date of all Lenders or all Lenders affected thereby shall, except payment may not be postponed as otherwise provided in Section 9.02, require the consent of to such Defaulting Lender in accordance with the terms hereofwithout such Defaulting Lender’s consent;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the such Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided Commitments (it being understood that in no reallocation under this clause (i) event shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a non-Defaulting Lender, including any claim of a Non-Defaulting ’s Revolving Lender Credit Exposure exceed such Lender’s Commitment as a result of such Non-Defaulting Revolving Lender’s increased exposure following reallocation) and (y) the conditions set forth in Section 4.02 are satisfied at such reallocationtime;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers or the Account Parties shall within one two Business Day Days following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar (or, if approved by each applicable Issuing Banks the portion of Bank in its sole discretion, otherwise provide credit support for) such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers or the Account Parties cash collateralizes collateralize, or otherwise provide credit support for, any portion of such Defaulting Lender’s LC Exposure pursuant to clause this paragraph (ii) abovec), the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralizedcollateralized or otherwise has credit support provided therefor;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause this paragraph (i) abovec), then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized, nor otherwise has credit support provided therefor nor is reallocated nor cash collateralized pursuant to clause this paragraph (i) or (ii) abovec), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation Letter of Credit fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and, otherwise has credit support provided therefor and/or is reallocated;
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral (or other credit support, if approved by each applicable Issuing Bank in its sole discretion) will be provided by the Borrower Borrowers or the Account Parties in accordance with Section 2.20(c2.21(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will or newly made Swingline Loan shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.21(c)(i) (and such Defaulting Lender Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.17(c), but excluding Section 2.18(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account (which may be invested as requested by the Parent Borrower, at the Parent Borrower’s risk and expense, subject to approval by the Administrative Agent) and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Bank or Swingline Lender hereunder, (iii) third, as the Parent Borrower may request (so long as no Default has occurred and is continuing) to the funding of any Loan or the funding or cash collateralization of any participating interest in any Swingline Loan or Letter of Credit in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement (such amounts to be determined by the Administrative Agent in consultation with the Parent Borrower), (iv) fourth, if so determined by the Administrative Agent and the Borrowers or the Account Parties, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Borrowers, the Account Parties or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers, the Account Parties or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, Holdingsthe Borrowers, the BorrowerAccount Parties, each the Issuing Bank and the Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that . For the avoidance of doubt, no adjustments will be made retroactively with respect to fees accrued that ceased to accrue pursuant to clause (a) above while such Lender was a Defaulting Lender or payments made by or on behalf of the Borrower that were allocated pursuant to clause (e) above while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (J C Penney Co Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:.
(a) commitment fees shall cease to accrue on the unfunded portion undrawn amount of the Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders (or any other requisite Lenders all Lenders, as the case may be) have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided provided, that any 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 all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of if such Defaulting Lender in accordance with the terms hereofis an affected Lender;
(c) if any LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one three Business Day Days following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) secondAgent, cash collateralize for the benefit of the Dollar applicable Issuing Banks only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if all or any portion of the such Defaulting Lender’s LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the all fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.11(b) with respect to such Defaulting Lender’s reallocated LC Exposure shall be payable to the non-Defaulting Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all Commitment Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit participation fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Banks (and allocated among them Banks, ratably based on the amount portion of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) , until and to the extent that such LC Exposure is reallocated and/or cash collateralizedcollateralized pursuant to clause (i) or (ii) above; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, it unless such Issuing Bank is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or and, to the extent such 100% coverage is not achieved, by cash collateral which will be provided by the Borrower in accordance with Section 2.20(c2.19(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) (and such Defaulting Lender shall not participate therein). .
(e) If (i) a Bankruptcy Event or a Bail-In Action with respect to a parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) an Issuing Bank 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 Lender referenced in clauses (i) and (ii), a “Disregarded Lender”), such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Issuing Bank is satisfied that the Disregarded Lender’s then outstanding LC Exposure, will be 100% covered by the Commitments of the non-Disregarded Lenders and, to the extent such 100% coverage is not achieved, by cash collateral which will be provided by the Borrower in accordance with Section 2.19(c), and participating interests in any newly issued or increased Letter of Credit shall be allocated among non-Disregarded Lenders in a manner consistent with Section 2.19(c) (and such Disregarded Lender shall not participate therein).
(f) In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender Borrower and each applicable the Issuing Bank Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline LC Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively .
(g) The rights and remedies against, and with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further thatto, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver under this Section 2.19 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent, each Lender, each Issuing Bank or release of the Borrower or any claim of other Loan Party may have at any party hereunder arising from time against, or with respect to, such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders or any other requisite Revolving Lenders, the Supermajority Required Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.02); , provided that any amendment(i) such Defaulting Lender’s Revolving Commitment may not be increased or extended without its consent and (ii) the principal amount of, waiver or other modification requiring interest or fees payable on, such Defaulting Lender’s Loans or participations in LC Disbursements may not be reduced or excused or the consent scheduled date of all Lenders or all Lenders affected thereby shall, except payment may not be postponed as otherwise provided in Section 9.02, require the consent of to such Defaulting Lender in accordance with the terms hereofwithout such Defaulting Lender’s consent;
(c) if any Swingline Exposure or LC Exposure exists exists, or any Protective Advance is outstanding, at the time such a Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the such Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender participations in Protective Advances shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Revolving Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure and participations in Protective Advances does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided Commitments (it being understood that in no reallocation under this clause (i) event shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a non-Defaulting Lender, including any claim of a Non-Defaulting ’s Revolving Lender Credit Exposure exceed such Lender’s Commitment as a result of such Non-Defaulting Revolving Lender’s increased exposure following reallocation) and (y) the conditions set forth in Section 4.02 are satisfied at such reallocationtime;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers or the Account Parties shall within one two Business Day Days following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and Protective Advances and (B) second, cash collateralize for the benefit of the Dollar (or, if approved by each applicable Issuing Banks the portion of Bank in its sole discretion, otherwise provide credit support for) such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers or the Account Parties cash collateralizes collateralize, or otherwise provide credit support for, any portion of such Defaulting Lender’s LC Exposure pursuant to clause this paragraph (ii) abovec), the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralizedcollateralized or otherwise has credit support provided therefor;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause this paragraph (i) abovec), then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized, nor otherwise has credit support provided therefor nor is reallocated nor cash collateralized pursuant to clause this paragraph (i) or (ii) abovec), then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation Letter of Credit fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and, otherwise has credit support provided therefor and/or is reallocated;
(d) so long as such any Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral (or other credit support, if approved by each applicable Issuing Bank in its sole discretion) will be provided by the Borrower Borrowers or the Account Parties in accordance with Section 2.20(c2.21(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will or newly made Swingline Loan shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.21(c)(i) (and such Defaulting Lender Lenders shall not participate therein). ; and
(e) any amount payable to a Defaulting Lender that is a Revolving Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.17(c), but excluding Section 2.18(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account (which may be invested as requested by the Parent Borrower, at the Parent Borrower’s risk and expense, subject to approval by the Administrative Agent) and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts (other than in respect of Protective Advances) owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Bank or Swingline Lender hereunder or to the Administrative Agent in respect of Protective Advances, (iii) third, as the Parent Borrower may request (so long as no Default has occurred and is continuing) to the funding of any Loan or the funding or cash collateralization of any participating interest in any Swingline Loan, Protective Advance or Letter of Credit in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement (such amounts to be determined by the Administrative Agent in consultation with the Parent Borrower), (iv) fourth, if so determined by the Administrative Agent and the Borrowers or the Account Parties, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Borrowers, the Account Parties or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers, the Account Parties or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (A) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements which a Defaulting Lender has funded its participation obligations and (B) made at a time when the conditions set forth in Section 4.02 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender.
(f) In the event that the Administrative Agent, Holdingsthe Borrowers, the BorrowerAccount Parties, each the Issuing Bank and the Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders Lenders, and their participations in Protective Advances, shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans and Protective Advances) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Revolving Percentage; provided that . For the avoidance of doubt, no adjustments will be made retroactively with respect to fees accrued that ceased to accrue pursuant to clause (a) above while such Lender was a Defaulting Lender or payments made by or on behalf of the Borrower that were allocated pursuant to clause (e) above while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (J C Penney Co Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment facility fees shall cease to accrue on the unfunded portion unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment Commitments and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof)) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e2.05(d) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages (calculated disregarding such Defaulting Lender’s Revolving Commitment) but only to the extent that (A) the sum of all Non-Defaulting Revolving Lenders’ Revolving Exposures plus after giving effect to such Defaulting Lender’s Swingline Exposure and LC Exposure does reallocation would not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause Commitments and (iB) 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 Revolving Lender as a result of the conditions set forth in Section 4.02 are satisfied at such Non-Defaulting Revolving Lender’s increased exposure following such reallocationtime;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Paying Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.11(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees payable under Section 2.11(a) with respect to such Defaulting Lender’s Revolving Commitment (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and all participation fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and;
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c2.19(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) (and such Defaulting Lender shall not participate therein); and
(e) payment of principal, interest, fees or other amounts received by the Paying Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) or received by the Paying Agent from a Defaulting Lender pursuant to Section 2.17(d) shall be applied at such time or times as may be determined by the Paying Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Paying Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or the Swingline Lender hereunder; third, to cash collateralize the Issuing Banks’ LC Exposure with respect to such Defaulting Lender in accordance with the procedures set forth in Section 2.05(i); fourth, as the Borrower may request (so long as no Default shall have occurred and be continuing), to the funding of any Revolving Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Paying Agent; fifth, if so determined by the Paying Agent and the Borrower, to be held in a deposit account and released pro rata in order to (i) satisfy such Defaulting Lender’s potential future funding obligations with respect to Revolving Loans under this Agreement and (ii) cash collateralize the Issuing Banks’ future LC Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with the procedures set forth in Section 2.05(i); sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, an Issuing Bank or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default shall have occurred and be continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (A) such payment is a payment of the principal amount of any Revolving Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (B) such Revolving Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Revolving Loans of, and LC Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Revolving Loans of, or LC Disbursements owed to, such Defaulting Lender. 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 2.19 shall be deemed paid to and redirected by such Defaulting Lender, and such Defaulting Lender irrevocably consents hereto. In the event that the Administrative Paying Agent, Holdings, the Borrower, each the Swingline Lender and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Paying Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage, and such Lender (upon consummation of the foregoing) 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 Borrower while such Revolving Lender was a Defaulting Lender; and provided further that, except as to the extent otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s Lender having been a Defaulting Lender.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Weyerhaeuser Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees Commitment Fees shall cease to accrue on the unfunded portion of the Commitment unused Commitments of such Defaulting Lender pursuant to Section 2.12(a2.07(a);
(b) the Commitments, the Revolving Commitment Credit Exposures and Revolving Exposure the aggregate principal amount of outstanding Competitive Bid Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.029.07); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.029.07, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any LC Exposure of any Class exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part the LC Exposure of the Swingline Exposure (other than (x) any portion thereof with respect to which such Class of such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e2.06(d) and 2.05(f2.06(e)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders with Commitments of such Class ratably in accordance with their respective Applicable Percentages Commitments of such Class, but only to the extent that (x) no Non-Defaulting Lender’s Revolving Credit Exposure of such Class would exceed such Non-Defaulting Lender’s Commitment of such Class and (y) the sum of all Non-Defaulting Revolving Lenders’ Revolving Credit Exposures of such Class plus such Defaulting Lender’s Swingline Exposure and LC Exposure of such Class does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result Commitments of such Non-Defaulting Revolving Lender’s increased exposure following such reallocationClass;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower applicable Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay cash collateralize for the benefit of the LC Issuers the portion of such Defaulting Lender’s Swingline LC Exposure of the applicable Class that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of as set forth in such Defaulting Lender’s Dollar LC Exposure that has not been reallocated clause in accordance with the procedures set forth in Section 2.05(i2.06(m) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation fees to such Defaulting Lender LC Participation Fees pursuant to Section 2.12(b) with respect to such the portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the applicable Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.07(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank LC Issuer or any other Lender hereunder, all participation fees LC Participation Fees payable under Section 2.12(b2.07(b) with respect to such Defaulting Lender’s portion of its LC Exposure shall be payable to the Issuing Banks LC Issuers (and allocated among them ratably based on the amount of such Defaulting Lender’s portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit issued by each Issuing BankLC Issuer) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank LC Issuer shall be required to issue, amend, renew or extend any Letter of Credit, Credit of an applicable Class unless, in each case, it is satisfied that the related exposure and that, after giving effect to such funding or issuance, amendment, renewal or extension, the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, each applicable Class will be fully covered by the Revolving Commitments of such Class of the Non-Defaulting Revolving Lenders and/or cash collateral provided by Lenders, after giving effect to the Borrower in accordance with Section 2.20(c), and reallocation of participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among in accordance with clause (c)(i) above and/or cash collateral in respect of such Letter of Credit is provided by the Non-Defaulting Revolving Lenders Borrowers in a manner consistent accordance with Section 2.20(c)(iclause (c)(ii) above.
(and such Defaulting Lender shall not participate therein). e) In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender Company and each applicable Issuing Bank LC Issuer each agrees agree in writing that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline LC Exposure and LC Exposure, as applicable, of the Revolving applicable Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment Commitments and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender the Lenders to hold such Revolving Loans ratably in accordance with its Applicable Percentagetheir applicable Commitments; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving that Lender was a Defaulting Lender; and provided further thatfurther, that except as to the extent otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving that Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Five Year Revolving Credit Facility Agreement (Hartford Financial Services Group Inc/De)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a1) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b2) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders adversely affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c3) if any LC Exposure exists at the time such a Revolving Lender becomes a Defaulting Lender, then:
(i) [reserved];
(ii) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Revolver Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving CommitmentsCommitments and (y) such reallocation does not cause the aggregate Revolving Exposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Revolving Commitment; provided that that, subject to Section 9.18, no reallocation under this clause (iii) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender Xxxxxx having become a Defaulting Lender, including any claim of a Nonnon-Defaulting Revolving Lender as a result of such Nonnon-Defaulting Revolving Lender’s increased exposure following such reallocation;
(iiiii) if the reallocation described in clause (iii) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iiiiv) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure is cash collateralized pursuant to clause (iiiii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(ivv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (iii) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation;
(vi) [reserved]; and
(vvii) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (iii) or (iiiii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d4) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, Credit unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.20(c)(ii) (and such Defaulting Lender shall not participate therein). In the event that (i) a Bankruptcy Event with respect to a Revolving Lender Parent shall occur following the Amendment and Restatement Effective Date and for so long as such Bankruptcy Event shall continue or (ii) any applicable Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, unless such Issuing Bank shall have entered into arrangements with Holdings and the Borrower or the applicable Revolving Lender, satisfactory to such Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender Borrower and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the Swingline LC Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the applicable Class of the other Revolving Lenders of such Class as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans of such Class in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Nonnon-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving LenderXxxxxx’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment facility fees shall cease continue to accrue on the unfunded portion amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a) only to the extent of the Revolving Credit Exposure of such Defaulting Lender (excluding any portion thereof constituting Swingline Exposure or LC Exposure of such Defaulting Lender that is subject to reallocation under clause (c)(i) below);; AMERICAS/0000000000.12022776969.5 64
(b) the Revolving Commitment and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.0210.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof)) and LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Non‑Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Non-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure (in each case, excluding the portion thereof referred to above) does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause Commitments and (iy) 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 each Non-Defaulting Lenders’ Revolving Lender as a result of such Non-Defaulting Credit Exposure does not exceed its Revolving Lender’s increased exposure following such reallocationCommitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent or an Issuing Bank (provided that such Issuing Bank shall immediately also notify the Administrative Agent) (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated as set forth in such clause and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated as set forth in such clause in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to such reallocation; andAMERICAS/0000000000.12022776969.5 65
(v) if all or any portion of such Defaulting Lender’s Swingline Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor reduced pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Swingline Lender or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender with respect to such portion of its Swingline Exposure shall be payable to the Swingline Lender until and to the extent that such Swingline Exposure is reallocated and/or reduced to zero; and
(vi) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender with respect to such portion of its LC Exposure, and all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s portion of its LC Exposure Exposure, shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the no Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, unless in each case, case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Non‑Defaulting Lenders and/or cash collateral provided by the Borrower Borrowers in accordance with Section 2.20(c)clause (c) above, and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Non‑Defaulting Lenders in a manner consistent with Section 2.20(c)(iclause (c)(i) above (and such Defaulting Lender shall not participate therein). .
(e) In the event that (i) a Bankruptcy Event with respect to a Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (ii) the Swingline Lender or any Issuing Bank 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, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the applicable Borrower or such Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder.
(f) In the event that the Administrative Agent, Holdings, the Borrower, each Company the Swingline Lender and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s AMERICAS/0000000000.12022776969.5 66 Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding (a) If any provision Letters of this Agreement to Credit are outstanding at the contrary, if any Revolving time a Lender becomes a Defaulting Lender, then and the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall Commitments have not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender been terminated in accordance with the terms hereof;
(c) if any LC Exposure exists at the time such Revolving Lender becomes a Defaulting LenderSection 6.01, then:
(i) so long as no Default has occurred and is continuing, all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such each Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion Lender’s ratable share of the Swingline Exposure referred to in clause (b) Available Amount of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) outstanding Letters of such Defaulting Lender Credit shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages Ratable Shares (disregarding any Defaulting Lender’s Commitment) but only to the extent that the sum of (A) the aggregate principal amount of all Revolving Credit Advances made by such Non-Defaulting Revolving Lenders (in their capacity as Lenders) and outstanding at such time, plus (B) such Non-Defaulting Lenders’ Revolving Exposures Ratable Shares (before giving effect to the reallocation contemplated herein) of the Available Amount of all outstanding Letters of Credit, plus (C) the aggregate principal amount of all Advances made by each Issuing Bank pursuant to Section 2.04(c) that have not been ratably funded by such Non-Defaulting Lenders and outstanding at such time, plus (D) such Defaulting Lender’s Swingline Exposure and LC Exposure Ratable Share of the Available Amount of such Letters of Credit, does not exceed the sum total of all Non-Defaulting Revolving Lenders’ Commitments and, after giving effect thereto with respect to each Non-Defaulting Lender, the sum of the Revolving Commitments; Credit Advances, participations in Letters of Credit (including any Advances made by an Issuing bank pursuant to Section 2.04(c) that have not been ratably funded by the Lenders and outstanding at such time) does not exceed such Non-Defaulting Lender’s Commitment, provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (A) firstany Issuing Bank, prepay the portion of Cash Collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and Ratable Share of the Available Amount of such Letters of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) by paying cash collateral to such Issuing Bank; provided that, so long as no Default shall be continuing, such cash collateral shall be released promptly upon the earliest of (A) the reallocation of the Available Amount of outstanding Letters of Credit among Non-Defaulting Lenders in accordance with clause (i) above, (B) second, cash collateralize for the benefit termination of the Dollar Defaulting Lender status of the applicable Lender or (C) such Issuing Banks Bank’s good faith determination that there exists excess cash collateral (in which case, the portion of amount equal to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstandingexcess cash collateral shall be released);
(iii) if the Borrower cash collateralizes any portion Ratable Shares of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion Letters of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion Credit of the LC Exposure of such Non-Defaulting Lender is Lenders are reallocated pursuant to clause (i) abovethis Section 2.21(a), then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.05(b)(i) shall be adjusted to give effect to in accordance with such reallocation; andNon-Defaulting Lenders’ Ratable Shares of Letters of Credit;
(viv) if all or any portion of such Defaulting Lender’s LC Exposure Ratable Share of Letters of Credit is neither Cash Collateralized nor reallocated nor cash collateralized pursuant to clause (i) or (ii) abovethis Section 2.21(a), then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation Letter of Credit fees payable under Section 2.12(b2.05(b)(i) with respect to such Defaulting Lender’s LC Exposure Ratable Share of Letters of Credit shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of Bank until such Defaulting Lender’s LC Exposure attributable to Ratable Share of Letters of Credit issued by each Issuing Bankis Cash Collateralized and/or reallocated; and
(v) until and to the extent that such LC Exposure the Available Amount of any outstanding Letter of Credit is reallocated and/or cash collateralized; andCash Collateralized by the Borrowers pursuant to this Section 2.21, the Borrowers shall not be required to pay any commission otherwise payable pursuant to Section 2.05(b)(i) on that portion of the Available Amount that is so Cash Collateralized.
(db) so So long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, Credit unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Credit Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c)applicable Borrower, and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.21(a)(i) (and such Defaulting Lender Lenders shall not participate therein).
(c) No Revolving Credit Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.21, performance by the Borrowers of their obligations shall not be excused or otherwise modified as a result of the operation of this Section 2.21. In The rights and remedies against a Defaulting Lender under this Section 2.21 are in addition to any other rights and remedies which the event that Borrowers, the Administrative Agent, Holdingsany Issuing Bank or any Lender may have against such Defaulting Lender.
(d) If the Borrowers, the Borrower, each Swingline Lender Agent and each applicable Issuing Bank each agrees agree in writing in their reasonable determination that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender should no longer be deemed to be a Defaulting Lender, then the Swingline Exposure Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and LC Exposuresubject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), as that Lender will, to the extent applicable, purchase that portion of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans outstanding Advances of the other Revolving Lenders or take such other actions as the Administrative Agent shall may determine may to be necessary to cause the Advances and funded and unfunded participations in order for such Revolving Lender Letters of Credit to hold such Revolving Loans be held on a pro rata basis by the Lenders in accordance with its Applicable Percentagetheir Ratable Share (without giving effect to Section 2.22(a)), 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 any Borrower while such Revolving that Lender was a Defaulting Lender; provided further thatand provided, further, that except as to the extent otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
(e) Notwithstanding anything to the contrary contained in this Agreement, any payment of principal, interest, commitment fees, Letter of Credit commissions or other amounts received by the Agent for the account of any Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity, pursuant to Article VI or otherwise) shall be applied at such time or times as may be reasonably determined by the Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank hereunder; third, if so reasonably determined by the Agent or requested by any Issuing Bank, to be held as cash collateral for future funding obligations of such Defaulting Lender in respect of any participation in any Letter of Credit; fourth, as the Borrowers may request (so long as no Default exists), to the funding of any Advance in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as reasonably determined by the Agent; fifth, if so reasonably determined by the Agent and the Borrowers, to be held in the L/C Cash Deposit Account and released in order to satisfy obligations of such Defaulting Lender to fund Advances under this Agreement; sixth, to the payment of any amounts owing to the Lenders or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender or Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default exists, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Revolving Credit Advance in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Advances were made or the related Letters of Credit were issued at a time when the applicable conditions set forth in Article III were satisfied or waived, such payment shall be applied solely to pay the Revolving Credit Advances of all Non-Defaulting Lenders and Potential Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Revolving Credit Advances of such Defaulting Lender and provided further 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 2.21 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 1 contract
Defaulting Lenders. Notwithstanding If any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded unused portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification permitted to be effected by the Required Lenders pursuant to Section 9.0210.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any LC Swingline Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part so long as no Event of Default has occurred and is continuing, the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be automatically reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one three Business Day Days following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender 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 to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralizedExposure; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c)Lenders, and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If the Swingline Lender has a good faith belief that any Lender has defaulted in fulfilling its funding obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan unless the Swingline Lender shall have entered into arrangements with the Borrower or such Lender reasonably satisfactory to the Swingline Lender to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each Borrower and the Swingline Lender and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders other than the Swingline Loans as the Administrative Agent shall determine may be is necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that there shall be no adjustments will be made retroactively with respect retroactive effect on fees adjusted or reallocated pursuant to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting LenderSection 2.20(a).
Appears in 1 contract
Samples: Credit Agreement (KKR Real Estate Finance Trust Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to (a) If a Lender becomes, and during the contraryperiod it remains, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as with respect to such Revolving Lender is a Defaulting Lender’s Revolving Percentage of (x) L/C Obligations and (y) the aggregate principal amount of Swingline Loans then outstanding:
(ai) commitment fees subject to the limitation in the first proviso below, such Defaulting Lender’s Revolving Percentage of (x) L/C Obligations and (y) the aggregate principal amount of Swingline Loans then outstanding shall cease to accrue automatically be reallocated (effective on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any LC Exposure exists at the time day such Revolving Lender becomes a Defaulting Lender, then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent that the sum of all Non-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no (A) the sum of (x) the amount of each Non-Defaulting Lender’s Revolving Percentage of any outstanding Swingline Loans, plus (y) the principal amount of such Non-Defaulting Lender’s outstanding Revolving Loans at the time of such reallocation, plus (z) such Non-Defaulting Lender’s Revolving Percentage of the L/C Obligations as in effect immediately prior to such reallocation under this clause may not exceed the Revolving Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation, and (iB) shall subject to Section 2.29 hereof, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim of the Borrower, the Administrative Agent, any party hereunder Issuing Lender, the Swingline Lender or any other Lender may have against a such Defaulting Lender arising from that or cause such Defaulting Lender having become a Defaulting Lender, including any claim of to be a Non-Defaulting Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if to the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure extent that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to Revolving Percentage of (x) L/C Obligations or (y) the aggregate principal amount of Swingline Loans then outstanding cannot be so reallocated (the “Unreallocated Portion”), whether by reason of the first proviso in clause (iii) aboveabove or otherwise, the Borrowers will, not later than two (2) Business Days after demand by the Administrative Agent (at the direction of any Issuing Lender) and/or the Swingline Lender, as the case may be (A) cash collateralize the obligations of the Borrower shall not be required to pay participation fees the Issuing Lender in respect of such L/C Obligations in an amount at least equal to 105% of the aggregate amount of such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion Unreallocated Portion of such Defaulting Lender’s LC Exposure for so long Revolving Percentage of L/C Obligations, (B) in the case of such outstanding Swingline Loans, prepay and/or cash collateralize in full the Unreallocated Portion thereof, or (C) make other arrangements satisfactory to the Administrative Agent and to the Issuing 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’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender 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 to give effect to such reallocation; and
(viii) if any amount paid by the Borrower or otherwise received by the Administrative Agent for the account of a Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts) will not be paid or distributed to such Defaulting Lender, but will instead be retained by the Administrative Agent in a segregated, non-interest bearing account until (subject to Section 2.27(d)) the termination of the Revolving Commitments and payment in full of all Obligations, and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreement; second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Lenders under this Agreement (ratably in accordance with the amounts owing to the Issuing Lenders); third, to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Lenders, ratably among them in accordance with the amounts of such interest then due and payable to them; fourth, to the payment of fees then due and payable to the Non-Defaulting Lenders hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them; fifth, to pay principal and unreimbursed amounts under drawn Letters of Credit honored by the Issuing Lender that have not been reimbursed and are then due and payable to the Non-Defaulting Lenders hereunder ratably in accordance with the amounts thereof then due and payable to them; sixth, to the ratable payment of other amounts then due and payable to the Non-Defaulting Lenders; and seventh, after the termination of the Revolving Commitments and payment in full of all Revolving Loans or any other Obligations of any Loan Party under the Loan Documents, to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct.
(b) Anything herein to the contrary notwithstanding, during such period as a Revolving Lender is a Defaulting Lender, such Defaulting Lender will not be entitled to any fees accruing during such period pursuant to Section 2.9(a) and 3.3(a) (without prejudice to the rights of Non-Defaulting Lenders in respect of such fees); provided that (a) to the extent that all or any portion of such Defaulting Lender’s LC Exposure is neither Revolving Percentage of (x) L/C Obligations or (y) the aggregate principal amount of Swingline Loans then outstanding are reallocated nor cash collateralized to the Non-Defaulting Lenders pursuant to clause (i) or (ii) aboveSection 2.27(a)(i), then, without prejudice to any rights or remedies such fees that would have accrued for the benefit of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall Lender will instead accrue for the benefit of and be payable to such Non-Defaulting Lenders, pro rata in accordance with their respective Revolving Commitments, and (b) to the Issuing Banks (and allocated among them ratably based on the amount extent that all or any portion of such Defaulting Lender’s LC Exposure attributable to Letters Revolving Percentage of Credit issued by each Issuing Bank(x) until L/C Obligations or (y) the aggregate principal amount of Swingline Loans then outstanding cannot be so reallocated, such fees will instead accrue for the benefit of and be payable to the extent applicable Issuing Lenders or the Swingline Lender, as applicable, as their respective interests appear (and the pro rata payment provisions of Section 2.18 will automatically be deemed adjusted to reflect the provisions of this Section).
(c) With the consent of the Administrative Agent, the Borrower may terminate the unused amount of the Revolving Commitment of a Defaulting Lender upon not less than three (3) Business Days’ prior notice to the Administrative Agent (which will promptly notify the Lenders thereof), and in such event the provisions of Section 2.27(a)(iii) will apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that such LC Exposure is reallocated and/or cash collateralized; andtermination will not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lenders or any Lenders may have against such Defaulting Lender.
(d) so long as such Revolving If the Borrower, the Administrative Agent and the Issuing Lenders agree in writing in their discretion that a Lender is no longer a Defaulting Lender, as the Swingline case may be, 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, such Lender will, to the extent applicable, purchase at par such portion of outstanding Loans of the other Lenders shall not and/or make such other adjustments as the Administrative Agent may determine to be required necessary to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in cause each case, it is satisfied that the related exposure and the Defaulting Lender’s then L/C Obligations, Revolving Loans and outstanding Swingline Exposure (other than the portion of Swing Loans to be based upon its Revolving Percentage, whereupon such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, Lender will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender cease to be a Defaulting Lender and will be a Non-Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; and provided further thatfurther, that except as to the extent otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Allison Transmission Holdings Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.12(b);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification (i) requiring the consent of all Lenders or all Lenders directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofhereof or (ii) that by its terms affects any Defaulting Lender disproportionately adversely relative to the other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Revolving Commitment) but only to the extent that such reallocation does not cause the sum Revolving Exposure of all any Non-Defaulting Revolving Lenders’ Revolving Exposures plus Lender to exceed such Non-Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that Commitment. Subject to Section 9.17, no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b2.12(c) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a2.12(b) and 2.12(b2.12(c) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such LC Exposure) and participation fees payable under Section 2.12(b2.12(c) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment except to the extent provided to the contrary in paragraph (iv) of Section 2.20(c) below, facility fees shall cease to accrue pursuant to Section 2.12(a) on the unfunded portion unused amount of the Commitment of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that the sum of all Non-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Credit Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one two Business Day Days following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.06(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender 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 to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such LC Exposure) and participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, unless in each case, case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank 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, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each the Swingline Lender and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.09(b);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.0210.02); , provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all each affected Lender which affects such Defaulting Lender differently than other affected Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereofLender;
(c) if any LC Exposure L/C Obligation exists at the time such a US Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender L/C Obligation shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages US Revolving Percentage but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ US Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure US Revolving Percentage of such L/C Obligation does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause Commitments and (iy) 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 Revolving Lender as a result of the conditions set forth in Section 5.03 are satisfied at such Non-Defaulting Revolving Lender’s increased exposure following such reallocationtime;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Company shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of cash collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion US Revolving Percentage of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated L/C Obligation (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i) Article VIII for so long as such LC Exposure amount is outstanding;
(iii) if the Borrower Company cash collateralizes any portion amount of such Defaulting Lender’s LC Exposure US Revolving Percentage of an L/C Obligation pursuant to clause (ii) above, the Borrower Company shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b3.03(a) with respect to such portion of amount during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure amount is cash collateralized;
(iv) if all or any portion part of the LC Exposure of such Defaulting Lender an L/C Obligation is reallocated among the non-Defaulting Lenders pursuant to clause (i) above, then the fees payable to the Revolving Lenders pursuant to Sections 2.12(aSection 2.09(b) and 2.12(bSection 3.03(a) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ US Revolving Percentage; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure US Revolving Percentage of an L/C Obligation is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.18(c), then, without prejudice to any rights or remedies of any the Issuing Bank Lender or any other Lender hereunder, all participation commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s US Revolving Commitment that was utilized by such L/C Obligation) and letter of credit fees payable under Section 2.12(b3.03(a) with respect to such Defaulting Lender’s LC Exposure US Revolving Percentage of such L/C Obligation shall be payable to the Issuing Banks Lender until such amount is cash collateralized and/or reallocated.
(d) subject to the last sentence of this Section 2.18, any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and allocated among them ratably based on including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.15(d) but excluding Section 2.16(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the amount Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Xxxxxxx Xxxxxx, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any existing or future participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan 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, (v) fifth, if so determined by the Administrative Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or the Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s LC Exposure attributable breach of its obligations under this Agreement, (vii) seventh, 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 (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, provided, with respect to this clause (viii), that if such payment is (A) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of Letters of Credit issued by each Issuing Bankin which a Defaulting Lender has funded its participation obligations and (B) until made at a time when the conditions set forth in Section 5.03 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a prepayment of any Loans or reimbursement obligations owed to any Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Company and the Issuing Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders and fulfill its reimbursement obligations in respect of Letters of Credit as the Administrative Agent and Issuing Lender shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans and reimbursement obligations in respect of Letters of Credit in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect US Revolving Percentages or Multicurrency Revolving Percentages, as applicable. In addition to fees accrued or payments made by or on behalf the foregoing provisions of the Borrower while such Revolving this Section 2.18, if any Lender was becomes a Defaulting Lender; provided further that, except as otherwise expressly agreed by then the affected parties, no change hereunder from a Company may (in the event that the Company does not require such Defaulting Lender to a Non-Defaulting Revolving assign and delegate its interest, rights and obligations under this Agreement in accordance with Section 2.16(b)), on 10 Business Days’ prior written notice to the Administrative Agent and such Lender, terminate the Commitment of such Lender will constitute a waiver or release and repay all obligations of any claim Borrower owing to such Lender relating to the Loans and participations held by such Lender as of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lendertermination date.
Appears in 1 contract
Samples: Credit Agreement (Corelogic, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue pursuant to Section 2.11(a) on the unfunded portion unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Non-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving CommitmentsCommitments and, for the avoidance of doubt, (y) such reallocation does not, as to any Non-Defaulting Lender, cause such Non-Defaulting Lender’s Revolving Exposure to exceed its Revolving Commitment; provided provided, that subject to Section 9.18, no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if (x) an Event of Default has occurred and is continuing or (y) the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a2.11(a) and 2.12(b2.11(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such LC Exposure) and participation fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower Borrowers in accordance with Section 2.20(c2.19(c), and, so long as no Event of Default has occurred and is continuing, participating interests in any such funded Swingline Loan or in any such issued, amended, renewed reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (a) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (b) any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless such Issuing Bank shall have entered into arrangements with the Borrowers or such Revolving Lender satisfactory to such Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender Borrowers and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline LC Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
; (b) the Revolving Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.02); , provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all each affected Lender which affects such Defaulting Lender differently than other affected Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereof;
Lender; (c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
: (i) all or any part of the such Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders of the same Class (if any) in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments, (y) the sum of all Non-non- Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result Credit Exposures of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of Class plus such Defaulting Lender’s Swingline Exposure that has of such Class and LC Exposure does not been reallocated exceed the total of such non-Defaulting Lenders’ Commitments of such Class and (Bz) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures conditions set forth in Section 2.05(i) for so long as 4.02 are satisfied at such LC Exposure is outstandingtime;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender 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 to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Schweitzer Mauduit International Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees the Revolving Commitment Fees and the Term Ticking Fees shall cease to accrue on the unfunded portion unused amount of the Revolving Commitment or on the Term Commitment, as the case may be, of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) the Revolving Commitment, the Revolving Exposure, the Term Commitment and Revolving Exposure the Term Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.0210.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any LC Exposure exists at the time such any Revolving Lender becomes a Defaulting Lender, then:
(i) all or any part the LC Exposure of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e2.20(d) and 2.05(f2.20(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that the sum of all Non-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure (excluding the portion thereof referred to above) does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following written notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated as set forth in such clause in accordance with the procedures set forth in Section 2.05(i2.20(n) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b2.09(c) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a2.09(a) and 2.12(b2.09(c) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b2.09(c) with respect to such Defaulting Lender’s portion of its LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the such Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower Borrowers in accordance with Section 2.20(c)clause (c) above, and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(iclause (c)(i) above (and such Defaulting Lender shall not participate therein). In the event that (x) a Bankruptcy Event with respect to a Lender Parent of a Revolving Lender shall have occurred following the Effective Date and for so long as such Bankruptcy Event shall continue or (y) any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Revolving Lender commits to extend credit, no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, such Issuing Bank shall have entered into arrangements with the Company and any other applicable Borrower or such Revolving Lender satisfactory to such Issuing Bank to defease any risk to it in respect of such Revolving Lender hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender Company and each applicable Issuing Bank each agrees agree that a Defaulting Lender that is a Revolving Lender has adequately remedied all matters that caused the applicable such Revolving Lender to be a Defaulting Lender, then the Swingline LC Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may to be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while , and such Revolving Lender shall thereupon cease to be a Defaulting Lender (but shall not be entitled to receive any Revolving Commitment Fees accrued during the period when it was a Defaulting Lender; provided further that, except as otherwise expressly agreed by and all amendments, waivers or modifications effected without its consent in accordance with the affected parties, no change hereunder from provisions of Section 10.02 and this Section during such period shall be binding on it). In the event that the Administrative Agent and the Company each agree that a Defaulting Lender that is a Term Lender has adequately remedied all matters that caused such Term Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been be a Defaulting Lender, then on such date such Term Lender shall take such actions as the Administrative Agent may determine to be appropriate in connection with such Term Lender ceasing to be a Defaulting Lender, and such Term Lender shall thereupon cease to be a Defaulting Lender (but shall not be entitled to receive any Term Ticking Fees accrued during the period when it was a Defaulting Lender, and all amendments, waivers or modifications effected without its consent in accordance with the provisions of Section 10.02 and this Section during such period shall be binding on it). The rights and remedies against, and with respect to, a Defaulting Lender under this Section are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent, any Issuing Bank, any Lender or the Borrowers may at any time have against, or with respect to, such Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Trimble Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees Commitment Interest pursuant to Section 2.11(a) shall cease to accrue on the unfunded unutilized portion of the applicable Commitment of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) the Revolving Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided provided, that any 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 all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that Commitments and (y) no reallocation under this clause (i) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a non-Defaulting Lender, including any claim of a Non's Revolving Credit Exposures plus such non-Defaulting Revolving Lender as a result Lender's Applicable Adjusted Percentage of such NonDefaulting Lender’s Swingline Exposure and LC Exposure exceeds such non-Defaulting Revolving Lender’s increased exposure following such reallocation's Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Revolving Borrower shall within one two Business Day Days following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks Bank only the portion of Revolving Borrower's obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Revolving Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Revolving Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(c) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(c) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b2.11(c) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Revolving Borrower in accordance with Section 2.20(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, renewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). .
(e) In the event that the Administrative Agent, Holdingsthe Revolving Borrower, the Borrower, each Swingline Lender and each applicable the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then (i) 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 such Lender will cease to be a Defaulting Lender; provided, however, 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 the Revolving Borrower or any other party hereunder arising from such Lender’s having been a Defaulting Lender, and the Revolving Borrower and such other party shall retain and reserve any such claim, and (ii) the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Credit Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a3.3(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.0210.2); provided that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all each affected Lender which affects such Defaulting Lender differently than other affected Lenders affected thereby shall, except as otherwise provided in Section 9.02, shall require the consent of such Defaulting Lender in accordance with the terms hereofLender;
(c) if any LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and such LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus plus, without duplication, such Defaulting Lender’s Swingline Exposure and LC Exposure Exposure, does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving CommitmentsCommitments and (y) the conditions set forth in Section 2.1 are satisfied at such time; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of shall cash collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.8(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) abovethis Section 2.10(c), the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b3.3(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;; or
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) aboveSection 2.10(c), then the fees payable to the Lenders pursuant to Sections 2.12(aSection 3.3(a) and 2.12(bSection 3.3(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies The Administrative Agent shall promptly notify the Lenders of any Issuing Bank or any other Lender hereunder, all participation fees payable under reallocation described in this Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and2.10(c).
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders Issuing Bank shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied in its reasonable credit judgment that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.10(c), and participating interests in any such funded Swingline Loan or in any such newly issued, amended, renewed amended or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.10(c)(i) (and such Defaulting Lender Lenders shall not participate therein). ; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.9(c) but excluding Section 3.8(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to any Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank hereunder, (iii) third, if so determined by the Administrative Agent or requested by the Issuing Bank, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any existing or future participating interest in any Letters of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Credit Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or the Issuing Bank as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Credit Agreement, (vii) seventh, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (A) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements which a Defaulting Lender has funded its participation obligations and (B) made at a time when the conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender.
(f) In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender Borrower and each applicable the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline LC Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment Commitments and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders Lenders, as applicable, have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided provided, that any amendmentwaiver, waiver amendment or other modification requiring the consent of all Lenders or all Lenders each affected thereby shallLender which affects such Defaulting Lender disproportionately when compared to the other affected Lenders, except as otherwise provided in Section 9.02or increases or extends the Commitment of such Defaulting Lender, shall require the consent of such Defaulting Lender in accordance with the terms hereofLender;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (A) the sum of all Nonsuch non-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Commitments, (B) such reallocation does not cause the Revolving Commitments; provided that no reallocation under this clause (i) shall constitute a waiver or release Credit Exposure of any claim of any party hereunder against a such non-Defaulting Lender arising from that Lender having become a to exceed such non-Defaulting Lender’s Commitment, including any claim of a Non-Defaulting Revolving Lender as a result of and (C) the conditions set forth in Section 4.02 are satisfied at such Non-Defaulting Revolving Lender’s increased exposure following such reallocationtime;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks Bank only the portion of Borrower’s obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(a) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c2.19(c), and participating interests in any such funded newly made Swingline Loan or in any such newly issued, amended, renewed or extended Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each the Swingline Lender and each applicable the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);2.12.
(b) the Revolving The Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included (in either the calculation of aggregate Commitments, outstanding Obligations or otherwise) in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.2); provided provided, that any 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 all Lenders or all Lenders such Lender as a Lender affected thereby shall, except as otherwise provided in pursuant to Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;10.2(b).
(c) if If any LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages (for the purposes of such reallocation the Defaulting Lender’s Commitment shall be disregarded in determining the Non-Defaulting Lender’s Applicable Percentage) but only to the extent that (x) the sum of all Non-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause Commitments and (iy) shall constitute a waiver or release the sum 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 each Non-Defaulting Lender’s Revolving Lender as a result Credit Exposure plus its reallocated share of such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Revolving Lender’s increased exposure following such reallocationCommitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the Non-Defaulting Lender Lenders is reallocated pursuant to clause (i) abovethis Section 2.21, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) Section 2.12 shall be adjusted to give effect to in accordance with such reallocationNon-Defaulting Lenders’ Applicable Percentages; and
(viii) if all or any portion of such Defaulting Lender’s LC Exposure is neither not reallocated nor cash collateralized pursuant to clause (i) or (ii) aboveSection 2.21(c), then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; andreallocated.
(d) so So long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew extend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c)Lenders, and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.5(d) (and such Defaulting Lender Lenders shall not participate therein).
(e) Borrower may elect to replace any Defaulting Lender in accordance with the provisions of Section 2.19(b). In the event that the Global Administrative Agent, Holdings, the Borrower, each Swingline Lender Borrower and each applicable the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Revolving Credit Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date date, if necessary as a result of a Loan funding pursuant to Section 2.5(h), such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Global Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Apache Corp)
Defaulting Lenders. Notwithstanding (a) If any provision Letters of this Agreement to Credit are outstanding at the contrary, if any Revolving time a Lender becomes a Defaulting Lender, then and the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall Commitments have not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender been terminated in accordance with the terms hereof;
(c) if any LC Exposure exists at the time such Revolving Lender becomes a Defaulting LenderSection 6.01, then:
(i) so long as no Default has occurred and is continuing, all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such each Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion Lender’s ratable share of the Swingline Exposure referred to in clause (b) Available Amount of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) outstanding Letters of such Defaulting Lender Credit shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages Ratable Shares (disregarding any Defaulting Lender’s Commitment) but only to the extent that the sum of (A) the aggregate principal amount of all Advances made by such Non-Defaulting Revolving Lenders (in their capacity as Lenders) and outstanding at such time, plus (B) such Non-Defaulting Lenders’ Revolving Exposures Ratable Shares (before giving effect to the reallocation contemplated herein) of the Available Amount of all outstanding Letters of Credit, plus (C) the aggregate principal amount of all Advances made by each Issuing Bank pursuant to Section 2.04(c) that have not been ratably funded by such Non-Defaulting Lenders and outstanding at such time, plus (D) such Defaulting Lender’s Swingline Exposure and LC Exposure Ratable Share of the Available Amount of such Letters of Credit, does not exceed the sum total of all Non-Defaulting Revolving Lenders’ Revolving Commitments; Commitments and, after giving effect thereto with respect to each Non-Defaulting Lender, the sum of the Advances, participations in Letters of Credit (including any Advances made by an Issuing bank pursuant to Section 2.04(c) that have not been ratably funded by the Lenders and outstanding at such time) does not exceed such Non-Defaulting Lender’s Commitment, provided subject to Section 9.20, that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following written notice by the Administrative Agent (A) firstany Issuing Bank, prepay the portion of Cash Collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and Ratable Share of the Available Amount of such Letters of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) by paying cash collateral to such Issuing Bank; provided that, so long as no Default shall be continuing, such cash collateral shall be released promptly upon the earliest of (A) the reallocation of the Available Amount of outstanding Letters of Credit among Non-Defaulting Lenders in accordance with clause (i) above, (B) second, cash collateralize for the benefit termination of the Dollar Defaulting Lender status of the applicable Lender or (C) such Issuing Banks Bank’s good faith determination that there exists excess cash collateral (in which case, the portion of amount equal to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstandingexcess cash collateral shall be released);
(iii) if the Borrower cash collateralizes any portion Ratable Shares of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion Letters of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion Credit of the LC Exposure of such Non-Defaulting Lender is Lenders are reallocated pursuant to clause (i) abovethis Section 2.21(a), then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.05(b)(i) shall be adjusted to give effect to in accordance with such reallocation; andNon-Defaulting Lenders’ Ratable Shares of Letters of Credit;
(viv) if all or any portion of such Defaulting Lender’s LC Exposure Ratable Share of Letters of Credit is neither Cash Collateralized nor reallocated nor cash collateralized pursuant to clause (i) or (ii) abovethis Section 2.21(a), then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation Letter of Credit fees payable under Section 2.12(b2.05(b)(i) with respect to such Defaulting Lender’s LC Exposure Ratable Share of Letters of Credit shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of Bank until such Defaulting Lender’s LC Exposure attributable to Ratable Share of Letters of Credit issued by each Issuing Bankis Cash Collateralized and/or reallocated; and (v) until and to the extent that such LC Exposure the Available Amount of any outstanding Letter of Credit is reallocated and/or cash collateralized; andCash Collateralized by the Borrowers pursuant to this Section 2.21, the Borrowers shall not be required to pay any commission otherwise payable pursuant to Section 2.05(b)(i) on that portion of the Available Amount that is so Cash Collateralized.
(db) so So long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, Credit unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Credit Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c)applicable Borrower, and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.21(a)(i) (and such Defaulting Lender Lenders shall not participate therein).
(c) No Revolving Credit Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.21, performance by the Borrowers of their obligations shall not be excused or otherwise modified as a result of the operation of this Section 2.21. In The rights and remedies against a Defaulting Lender under this Section 2.21 are in addition to any other rights and remedies which the event that Borrowers, the Administrative Agent, Holdingsany Issuing Bank or any Lender may have against such Defaulting Lender.
(d) If the Borrowers, the Borrower, each Swingline Lender Agent and each applicable Issuing Bank each agrees agree in writing in their reasonable determination that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender should no longer be deemed to be a Defaulting Lender, then the Swingline Exposure Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and LC Exposuresubject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), as that Lender will, to the extent applicable, purchase that portion of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans outstanding Advances of the other Revolving Lenders or take such other actions as the Administrative Agent shall may determine may to be necessary to cause the Advances and funded and unfunded participations in order for such Revolving Lender Letters of Credit to hold such Revolving Loans be held on a pro rata basis by the Lenders in accordance with its Applicable Percentagetheir Ratable Share (without giving effect to Section 2.22(a)), 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 any Borrower while such Revolving Lender that Xxxxxx was a Defaulting Lender; provided further thatand provided, further, that except as to the extent otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving LenderXxxxxx’s having been a Defaulting Lender.
(e) Notwithstanding anything to the contrary contained in this Agreement, any payment of principal, interest, commitment fees, Letter of Credit commissions or other amounts received by the Agent for the account of any Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity, pursuant to Article VI or otherwise) shall be applied at such time or times as may be reasonably determined by the Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank hereunder; third, if so reasonably determined by the Agent or requested by any Issuing Bank, to be held as cash collateral for future funding obligations of such Defaulting Lender in respect of any participation in any Letter of Credit; fourth, as the Borrowers may request (so long as no Default exists), to the funding of any Advance in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as reasonably determined by the Agent; fifth, if so reasonably determined by the Agent and the Borrowers, to be held in the L/C Cash Deposit Account and released in order to satisfy obligations of such Defaulting Lender to fund Advances under this Agreement; sixth, to the payment of any amounts owing to the Lenders or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender or Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default exists, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Advance in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Advances were made or the related Letters of Credit were issued at a time when the applicable conditions set forth in Article III were satisfied or waived, such payment shall be applied solely to pay the Advances of all Non-Defaulting Lenders and Potential Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Advances of such Defaulting Lender and provided further 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 2.21 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment solely for purposes of subsection (a) of Section 2.9, the Percentage Share of a Defaulting Lender shall be excluded and the Percentage Share of each non-Defaulting Lender shall be the ratio of the Facility Amount of such non-Defaulting Lender to the sum of the Facility Amounts of all non-Defaulting Lenders;
(b) fees shall cease to accrue on the unfunded unused portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a)2.13 if such Lender is a Defaulting Lender pursuant to clause (a) or clause (b) of the definition of Defaulting Lender;
(bc) the Revolving Percentage Share of the Commitment Amount of and Revolving the Loan Balance and L/C Exposure of allocable to such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 9.029.9); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(cd) if any LC L/C Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline such L/C Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages Percentage Shares, but only to the extent that (x) the sum of the Loan Balance allocable to all Nonnon-Defaulting Revolving Lenders’ Revolving Exposures Lenders plus the L/C Exposure allocable to such Defaulting Lender’s Swingline Exposure and LC Exposure Lender does not exceed the total of all non-Defaulting Lenders’ Percentage Shares of the Commitment Amount and the sum of all Nonthe Loan Balance and the L/C Exposure allocable to any non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of does not exceed such Non-Defaulting Revolving Lender’s increased exposure following Percentage Share of the Commitment Amount and (y) the conditions set forth in Section 3.1 and Section 3.3 are satisfied at such reallocationtime;
(ii) if the reallocation described in clause (i) immediately above cannot, or can only partially, be effected, the Borrower shall shall, within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) secondAgent, cash collateralize for the benefit of the Dollar Issuing Banks the portion of L/C Exposure allocable to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated Lender (after giving effect to any partial reallocation pursuant to clause (i) immediately above) in accordance with the procedures set forth in Section 2.05(i2.11 and subsection (d) of Section 7.2, respectively, for so long as such LC Exposure L/C exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of the L/C Exposure allocable to such Defaulting Lender’s LC Exposure Lender pursuant to clause (ii) immediately above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to subsection (f) of Section 2.12(b) 2.1 with respect to the L/C Exposure allocable to such Defaulting Lender during the period such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC the L/C Exposure is cash collateralized;; and
(iv) if any portion of the LC L/C Exposure of such allocable to the non-Defaulting Lender Lenders is reallocated pursuant to clause (iii) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.13 and subsection (f) and 2.12(b) of Section 2.1, respectively, shall be adjusted to give effect to in accordance with such reallocation; and
(v) if all or any portion of such non-Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized Lenders’ Percentage Shares as adjusted pursuant to clause (ia) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under this Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and2.25.
(de) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders Agent shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully one-hundred percent (100%) covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c)clause (d) immediately above, and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(iclause (d) immediately above (and such the Defaulting Lender shall not participate therein). In ; and
(f) in the event that the Administrative Agent, Holdings, Agent and the Borrower, Borrower each Swingline Lender and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline L/C Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Percentage Share of the Commitment Amount and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting LenderPercentage Share.”
Appears in 1 contract
Samples: Credit Agreement (Primeenergy Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees the Revolving Commitment Fees shall cease to accrue on the unfunded portion unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)Lender;
(b) the Revolving Commitment, the Revolving Exposure, the Term Commitment and Revolving Exposure the Term Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0210.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.0210.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such any Revolving Lender becomes a Defaulting Lender, then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof2.20(c)) and LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e2.19(d) and 2.05(f2.19(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that following such reallocation the sum of all Non-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure (excluding the portion thereof referred to in the parenthetical clause above) and LC Exposure (excluding the portion thereof referred to in the parenthetical clause above) so reallocated does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one Business Day following written notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure attributable to Swingline Loans made to such Borrower (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure attributable to Letters of Credit issued for the account of such Borrower (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated in accordance with the procedures set forth in Section 2.05(i2.19(m) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b2.09(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a2.09(a) and 2.12(b2.09(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b2.09(b) with respect to such portion of such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the such Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicableapplicable (other than any portion thereof referred to in the parentheticals in clause (i) above), will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower Borrowers in accordance with Section 2.20(c)clause (c) above, and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed amended or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(iclause (c)(i) above (and such Defaulting Lender shall not participate therein). .
(e) In the event that the Administrative Agent, Holdingsthe Company, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees agree that a Defaulting Lender that is a Revolving Lender has adequately remedied all matters that caused the applicable such Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders and such funded participations in Swingline Loans and LC Disbursements as the Administrative Agent shall determine may to be necessary in order for such Revolving Lender to hold such Revolving Loans and such funded participations in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while , and such Revolving Lender shall thereupon cease to be a Defaulting Lender (but shall not be entitled to receive any Revolving Commitment Fees accrued during the period when it was a Defaulting Lender; provided further that, except as otherwise expressly agreed by and all amendments, waivers or modifications effected without its consent in accordance with the affected parties, no change hereunder from provisions of Section 10.02 and this Section during such period shall be binding on it).
(f) In the event that the Administrative Agent and the Company each agree that a Defaulting Lender that is a Term Lender has adequately remedied all matters that caused such Term Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been be a Defaulting Lender, then on such date such Term Lender shall take such actions as the Administrative Agent may determine to be appropriate in connection with such Term Lender ceasing to be a Defaulting Lender, and such Term Lender shall thereupon cease to be a Defaulting Lender (but all amendments, waivers or modifications effected without its consent in accordance with the provisions of Section 10.02 and this Section during such period shall be binding on it).
(g) The rights and remedies against, and with respect to, a Defaulting Lender under this Section are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent, any Issuing Bank, the Swingline Lender, any other Lender or any Loan Party may at any time have against, or with respect to, such Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment facility fees shall cease continue to accrue on the unfunded portion amount of the Commitment of such Defaulting Lender pursuant to Section 2.12(a) only to the extent of the Credit Exposure of such Defaulting Lender (excluding any portion thereof constituting LC Exposure of such Defaulting Lender that is subject to reallocation under clause (c)(i) below);
(b) the Revolving Commitment and Revolving the Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part the LC Exposure of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Non-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure (in each case, excluding the portion thereof referred to above) does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause Commitments and (iy) 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 each Non-Defaulting Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocationLenders’ Credit Exposure does not exceed its Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent or an Issuing Bank (Aprovided that such Issuing Bank shall immediately also notify the Administrative Agent) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar applicable Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated as set forth in such clause in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender with respect to such portion of its LC Exposure, and all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s portion of its LC Exposure Exposure, shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, unless in each case, case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c)clause (c) above, and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(iclause (c)(i) above (and such Defaulting Lender shall not participate therein). .
(e) In the event that (i) a Bankruptcy Event with respect to a Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (ii) any Issuing Bank 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, no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless such Issuing Bank shall have entered into arrangements with the Borrower or such Lender satisfactory to such Issuing Bank to defease any risk to it in respect of such Lender hereunder.
(f) In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender Borrower and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline LC Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment facility fees shall cease to accrue on the unfunded portion unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment Commitments and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving a Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof)) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e2.05(d) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages (calculated disregarding such Defaulting Lender’s Revolving Commitment) but only to the extent that (A) the sum of all Non-Defaulting Revolving Lenders’ Revolving Exposures plus after giving effect to such Defaulting Lender’s Swingline Exposure and LC Exposure does reallocation would not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause Commitments and (iB) 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 Revolving Lender as a result of the conditions set forth in Section 4.02 are satisfied at such Non-Defaulting Revolving Lender’s increased exposure following such reallocationtime;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.11(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all facility fees payable under Section 2.11(a) with respect to such Defaulting Lender’s Revolving Commitment (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and all participation fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and;
(d) so long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c2.19(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.19(c)(i) (and such Defaulting Lender shall not participate therein); and
(e) payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 2.17(d) 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 hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or the Swingline Lender hereunder; third, to cash collateralize the Issuing Banks’ LC Exposure with respect to such Defaulting Lender in accordance with the procedures set forth in Section 2.05(i); fourth, as the Borrower may request (so long as no Default shall have occurred and be continuing), to the funding of any Revolving Loan 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; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (i) satisfy such Defaulting Lender’s potential future funding obligations with respect to Revolving Loans under this Agreement and (ii) cash collateralize the Issuing Banks’ future LC Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with the procedures set forth in Section 2.05(i); sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, an Issuing Bank or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default shall have occurred and be continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (A) such payment is a payment of the principal amount of any Revolving Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (B) such Revolving Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Revolving Loans of, and LC Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Revolving Loans of, or LC Disbursements owed to, such Defaulting Lender. 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 2.19 shall be deemed paid to and redirected by such Defaulting Lender, and such Defaulting Lender irrevocably consents hereto. In the event that the Administrative Agent, Holdings, the Borrower, each the Swingline Lender and each applicable Issuing Bank each agrees agree that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage, and such Lender (upon consummation of the foregoing) 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 Borrower while such Revolving Lender was a Defaulting LenderLender and all amendments, waivers or modifications effected without its consent in accordance with the provisions of Section 9.02 and this Section during such period shall be binding on it; and provided further that, except as to the extent otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s Lender having been a Defaulting Lender.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Weyerhaeuser Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided provided, that any 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 all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that Commitments and (y) no reallocation under this clause (i) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a non-Defaulting Lender, including any claim of a Non’s Revolving Credit Exposures plus such non-Defaulting Revolving Lender as a result Lender’s Applicable Adjusted Percentage of such NonDefaulting Lender’s Swingline Exposure and LC Exposure exceeds such non-Defaulting Revolving Lender’s increased exposure following such reallocationRevolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one two Business Day Days following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks Bank only the portion of Borrowers’ obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.05(j) for so long as such LC Exposure is outstanding;
(iii) if the any Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the such Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a) and 2.12(bSection 2.11(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower Borrowers in accordance with Section 2.20(c2.23(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, renewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.23(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank 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, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdingsthe U.S. Borrower, the Borrower, each Swingline Lender and each applicable the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Perrigo Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting LenderLender :
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a2.11(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.0211.05); provided provided, that any 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 all Lenders such Lender or all Lenders each Lender affected thereby shall, except as otherwise provided in Section 9.02, require the consent of which affects such Defaulting Lender in accordance with the terms hereofdifferently than other affected Lenders;
(c) if any LC Swing Line Exposure or Letter of Credit Usage exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Swing Line Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion Letter of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) Credit Usage of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) such reallocation does not cause the sum aggregate Revolving Exposure of all Nonany non-Defaulting Revolving Lenders’ Revolving Exposures plus Lender to exceed such non-Defaulting Lender’’s Swingline Exposure Commitments and LC Exposure does not exceed (y) the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of conditions set forth in Section 3.02 are satisfied at such Non-Defaulting Revolving Lender’s increased exposure following such reallocationtime;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Swing Line Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of Bank only Borrower’’s obligations corresponding to such Defaulting Lender’’s Dollar LC Exposure that has not been reallocated Letter of Credit Usage (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.04(i) for so long as such LC Exposure Letter of Credit Usage is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’’s LC Exposure Letter of Credit Usage pursuant to clause (ii) above, the Borrower shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b2.11(a)(ii) with respect to such portion Defaulting Lender’’s Letter of Credit Usage during the period such Defaulting Lender’’s LC Exposure for so long as such Defaulting Lender’s LC Exposure Letter of Credit Usage is cash collateralized;
(iv) if any portion the Letter of Credit Usage of the LC Exposure of such non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(aSection 2.11(a)(i) and 2.12(bSection 2.11(a)(ii) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’’s LC Exposure Letter of Credit Usage is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b2.11(a)(ii) with respect to such Defaulting Lender’’s LC Exposure Letter of Credit Usage shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure Letter of Credit Usage is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
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Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders, the Majority in Interest of the Revolving Lenders or any other requisite the Majority in Interest of the Term Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that, except as otherwise provided that any in Section 9.02, 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 all Lenders such Lender or all Lenders each Lender directly affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereofthereby;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) so long as at the time of such reallocation (x) no Default has occurred and is continuing and (y) the conditions set forth in Section 4.02 are satisfied: all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Dollar Tranche Lenders in accordance with their respective Applicable Dollar Tranche Percentages but only to the extent that (A) the sum of all Nonnon-Defaulting Revolving Lenders’ Dollar Tranche Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure does not exceed the total of all non-Defaulting Dollar Tranche Lenders’ Dollar Tranche Commitments and (B) each non-Defaulting Lender’s Dollar Tranche Revolving Credit Exposure does not exceed such non-Defaulting Lender’s Dollar Tranche Commitment; and all or any part of the Dollar Tranche LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Dollar Tranche Lenders in accordance with their respective Dollar Tranche Percentages but only to the extent (C) the sum of all non-Defaulting Lenders’ Dollar Tranche Revolving Credit Exposures plus such Defaulting Lender’s Dollar Tranche LC Tranche Exposure does not exceed the total of all non-Defaulting Dollar Tranche Lenders’ Dollar Tranche Commitments and (D) each non-Defaulting Lender’s Dollar Tranche Revolving Credit Exposure does not exceed such non-Defaulting Lender’s Dollar Tranche Commitment; and all or any part of the Multicurrency Tranche LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Multicurrency Tranche Lenders in accordance with their respective Multicurrency Tranche Percentages but only to the extent (E) the sum of all Nonnon-Defaulting Revolving Lenders’ Multicurrency Tranche Revolving Commitments; provided that no reallocation under this clause (i) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Credit Exposures plus such Defaulting Lender, including any claim ’s Multicurrency Tranche LC Tranche Exposure does not exceed the total of a Nonall non-Defaulting Revolving Lender as a result of such NonMulticurrency Tranche Lenders’ Multicurrency Tranche Commitments and (F) each non-Defaulting Revolving Lender’s increased exposure following Multicurrency Tranche Revolving Credit Exposure does not exceed such reallocationnon-Defaulting Lender’s Multicurrency Tranche Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (Ax) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (By) second, cash collateralize for the benefit of the Dollar Issuing Banks only the portion of Borrowers’ obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such the non-Defaulting Lender Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.12(b) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any the Issuing Bank Banks or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no the Issuing Bank Banks shall not be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline LC Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Commitments of the Non-Defaulting Revolving non‑Defaulting Lenders and/or cash collateral will be provided by the Borrower Company in accordance with Section 2.20(c2.24(c), and participating interests in any such funded newly made Swingline Loan or in any such issued, amended, renewed newly issued or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the Original Effective Date and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank 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, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the applicable Issuing Bank, as the case may be, shall have entered into arrangements with the Company or such Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdingsthe Company, the Borrower, each Swingline Lender and each applicable the Issuing Bank Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Dollar Tranche Revolving Loans (other than Swingline Loans) and/or Multicurrency Tranche Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding (a) If any provision Letters of this Agreement to Credit are outstanding at the contrary, if any Revolving time a Lender becomes a Defaulting Lender, then and the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall Commitments have not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender been terminated in accordance with the terms hereof;
(c) if any LC Exposure exists at the time such Revolving Lender becomes a Defaulting LenderSection 6.01, then:
(i) so long as no Default has occurred and is continuing, all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion Available Amount of the Swingline Exposure referred to in clause (b) outstanding Letters of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender Credit shall be reallocated among the NonLenders that are not Defaulting Lenders (“non-Defaulting Revolving Lenders Lenders”) in accordance with their respective Applicable Percentages Ratable Shares (disregarding any Defaulting Lender’s Revolving Credit Commitment) but only to the extent that (x) the sum of (A) the aggregate principal amount of all NonAdvances made by such non-Defaulting Revolving Lenders (in their capacity as Lenders) and outstanding at such time, plus (B) such non-Defaulting Lenders’ Revolving Exposures Ratable Shares (before giving effect to the reallocation contemplated herein) of the Available Amount of all outstanding Letters of Credit, plus (C) the aggregate principal amount of all Advances made by each Issuing Bank pursuant to Section 2.03(c) that have not been ratably funded by Lenders and outstanding at such time, plus (D) such Defaulting Lender’s Swingline Exposure and LC Exposure Ratable Share of the Available Amount of such Letters of Credit, does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Revolving Commitments; provided that no reallocation under this clause Credit Commitments and (iy) shall constitute a waiver or release the sum of (A) the aggregate principal amount of all Advances made by any claim of any party hereunder against a non-Defaulting Lender arising from that Lender having become (in its capacity as a Lender) and outstanding at such time, plus (B) such non-Defaulting Lender’s participation interest (after giving effect to the reallocation contemplated herein) in the Available Amount of all outstanding Letters of Credit and Advances made by each Issuing Bank pursuant to Section 2.03(c) that have not been ratably funded by Lenders, including any claim of a Nondoes not exceed such non-Defaulting Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;Revolving Credit Commitment.
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one two Business Day Days following notice by the Administrative Agent (A) firstany Issuing Bank, prepay the portion of cash collateralize such Defaulting Lender’s Swingline Exposure that has not been reallocated and Ratable Share of the Available Amount of such Letters of Credit (after giving effect to any partial reallocation pursuant to clause (i) above), by paying cash collateral in such amount to such Issuing Bank; provided that, so long as no Default shall be continuing, such cash collateral shall be released promptly upon the earliest of (A) the reallocation of the Available Amount of outstanding Letters of Credit among non-Defaulting Lenders in accordance with clause (i) above, (B) second, cash collateralize for the benefit termination of the Dollar Defaulting Lender status of the applicable Lender or (C) such Issuing Banks Bank’s good faith determination that there exists excess cash collateral (in which case, the portion of amount equal to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstandingexcess cash collateral shall be released);
(iii) if the Borrower Ratable Shares of Letters of Credit of the non-Defaulting Lenders are reallocated or cash collateralizes any portion of such Defaulting Lender’s LC Exposure collateralized pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to this Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above2.19(a), then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(bSection 2.04(b)(i) shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Ratable Shares of the Letters of Credit that are not cash collateralized; andor
(viv) if all or any portion of such Defaulting Lender’s LC Exposure Ratable Share of Letters of Credit is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.19(a), then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation letter of credit fees payable under Section 2.12(b2.04(b)(i) with respect to such Defaulting Lender’s LC Exposure Ratable Share of Letters of Credit shall be payable to the applicable Issuing Banks (and allocated among them ratably based on the amount of Bank until such Defaulting Lender’s LC Exposure attributable to Ratable Share of Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated cash collateralized and/or cash collateralized; andreallocated.
(db) so So long as such Revolving any Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, Credit unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower Borrowers in accordance with Section 2.20(c2.19(a), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i2.19(a)(i) (and such Defaulting Lender Lenders shall not participate therein).
(c) No Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.19, performance by any Borrower of its obligations shall not be excused or otherwise modified as a result of the operation of this Section 2.19. In The rights and remedies against a Defaulting Lender under this Section 2.19 are in addition to any other rights and remedies which any Borrower, the event that the Administrative Agent, Holdingsany Issuing Bank or any Lender may have against such Defaulting Lender.
(d) If each Borrower, the Borrower, each Swingline Lender Agent and each applicable Issuing Bank each agrees agree in writing in their reasonable determination that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender should no longer be deemed to be a Defaulting Lender, then the Swingline Exposure Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and LC Exposuresubject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), as that Lender will, to the extent applicable, purchase that portion of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans outstanding Advances of the other Revolving Lenders or take such other actions as the Administrative Agent shall may determine may to be necessary to cause the Advances and funded and unfunded participations in order for such Revolving Lender Letters of Credit to hold such Revolving Loans be held on a pro rata basis by the Lenders in accordance with its Applicable Percentagetheir Ratable Share (without giving effect to Section 2.19(a)), 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 Borrower Borrowers while such Revolving that Lender was a Defaulting Lender; provided further thatand provided, further, that except as to the extent otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
(e) Notwithstanding anything to the contrary contained in this Agreement, any payment of principal, interest, facility fees, Letter of Credit commissions or other amounts received by the Agent for the account of any Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity, pursuant to Article VI or otherwise) shall be applied at such time or times as may be determined by the Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank hereunder; third, if so determined by the Agent or requested by any Issuing Bank, to be held as cash collateral for future funding obligations of such Defaulting Lender in respect of any participation in any Letter of Credit; fourth, as the Borrowers may request (so long as no Default exists), to the funding of any Advance in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; fifth, if so determined by the Agent and the Borrowers, to be held in the L/C Cash Deposit Account and released in order to satisfy obligations of such Defaulting Lender to fund Advances under this Agreement; sixth, to the payment of any amounts owing to the Lenders or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender or Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default exists, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Advance in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Advances were made or the related Letters of Credit were issued at a time when the applicable conditions set forth in Article III were satisfied or waived, such payment shall be applied solely to pay the Advances of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Advances of such Defaulting Lender and provided further 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 2.19 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a)subsection 4.1;
(b) the Revolving Commitment and Commitment, Revolving Exposure and, as applicable, US Tranche Revolving Exposure and/or Multicurrency Tranche Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Majority Lenders, Majority in Interest of Revolving Lenders, Majority in Interest of US Tranche Revolving Lenders and/or Majority in Interest of Multicurrency Tranche Revolving Lenders, as applicable, or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02subsection 11.1); provided provided, for the avoidance of doubt, that nothing in this subsection 2.14(b) shall affect the rights of any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with under the terms hereofproviso to the second sentence of subsection 11.1(a) and under the last sentence of Section 11.1(a);
(c) if such Revolving Lender is a Multicurrency Tranche Revolving Lender, if any LC Exposure exists L/C Obligations exist at the time such Revolving Lender becomes a Defaulting Lender, Lender then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) L/C Obligations of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Revolving Commitment Percentages in respect of Multicurrency Tranche Revolving Commitments but only to the extent that the sum aggregate amount of all Nonnon-Defaulting Revolving Lenders’ Multicurrency Tranche Revolving Exposures plus Exposure following such Defaulting Lender’s Swingline Exposure and LC Exposure reallocation does not exceed the sum total of all Nonnon-Defaulting Revolving Lenders’ Multicurrency Tranche Revolving Commitments; provided that no reallocation under this clause (i) 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 Revolving Lender as a result of such Non-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall Company shall, within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) secondAgent, cash collateralize for the benefit of the Dollar Issuing Banks only the portion of Company’s obligations corresponding to such Defaulting Lender’s Dollar LC Exposure that has not been reallocated L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.05(i) subsection 3.10 for so long as such LC Exposure is L/C Obligations are outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to clause (ii) above, the Borrower Company shall not be required to pay participation any fees to such Defaulting Lender pursuant to Section 2.12(b) subsection 3.3 with respect to such portion of Defaulting Lender’s L/C Obligations during the period such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is L/C Obligations are cash collateralized;
(iv) if any portion the L/C Obligations of the LC Exposure of such non-Defaulting Lender is Lenders are reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) subsection 3.3 shall be adjusted to give effect to in accordance with such reallocationnon-Defaulting Lenders’ Revolving Commitment Percentages in respect of Multicurrency Tranche Revolving Commitments; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure L/C Obligations is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Multicurrency Tranche Revolving Commitment that was utilized by such L/C Obligations) and Letter of Credit fees payable under Section 2.12(b) subsection 3.3 with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to the such Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) Bank until and to the extent that such LC Exposure is Defaulting Lender’s L/C Obligations are reallocated and/or cash collateralized; and
(dvi) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew amend or extend increase any Letter of Credit, unless, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, L/C Obligations will be fully 100% covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrower Company in accordance with Section 2.20(csubsection 2.14(c), and participating interests in any such funded Swingline Loan newly issued or in any such issued, amended, renewed or extended increased Letter of Credit will shall be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(isubsection 2.14(c)(i) (and such Defaulting Lender shall not participate therein). .
(d) If (i) a Bankruptcy Event with respect to a Parent of any Multicurrency Tranche Revolving Lender shall occur following the date hereof and for so long as such event shall continue or (ii) any Issuing Bank has a good faith belief that any Multicurrency Tranche Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Multicurrency Tranche Revolving Lender commits to extend credit, then such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Issuing Bank shall have entered into arrangements with the Company or such Multicurrency Tranche Revolving Lender, satisfactory to such Issuing Bank, as the case may be, to eliminate any risk to it in respect of such Multicurrency Tranche Revolving Lender hereunder.
(e) In the event that the Administrative Agent, Holdingsthe Company and, in the Borrowercase of a Multicurrency Tranche Revolving Lender, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, L/C Obligations of the Multicurrency Tranche Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Multicurrency Tranche Revolving Commitment Commitment, if any, and on such date such Revolving Lender shall purchase at par such of the US Tranche Revolving Loans and/or Multicurrency Tranche Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf Revolving Commitment Percentage of the Borrower while such Revolving Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lendereach Class.
Appears in 1 contract
Samples: Multi Currency Credit Agreement (Harman International Industries Inc /De/)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender, then:
(i) all or any part of the Swingline Exposure (other than (x) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and (y) the portion of the Swingline Exposure referred to in clause (b) of the definition thereof) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the Nonnon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent that (A) the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Nonnon-Defaulting Revolving Lenders’ Revolving CommitmentsCommitments and (B) the Revolving Exposure of each non-Defaulting Lender immediately after giving effect to such reallocation would not exceed the Revolving Commitment of such non-Defaulting Lender; provided that no reallocation under this clause (i) 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 Nonnon-Defaulting Revolving Lender as a result of such Nonnon-Defaulting Revolving Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Dollar Issuing Banks the portion of such Defaulting Lender’s Dollar LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender 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 to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lenders Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Nonnon-Defaulting Revolving Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.20(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Nonnon-Defaulting Revolving Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the event that (i) a Bankruptcy Event with respect to a Revolving Lender Parent shall occur following the date hereof and for so long as such Bankruptcy Event shall continue or (ii) any Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Swingline Lender shall not be required to fund any Swingline Loan and such Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, unless such Swingline Lender or such Issuing Bank, as applicable, shall have entered into arrangements with the Borrower or the applicable Revolving Lender, satisfactory to such Swingline Lender or such Issuing Bank, as applicable, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Holdings, the Borrower, each Swingline Lender and each applicable Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused the applicable Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure, as applicable, Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Lender was a Defaulting Lender; provided further provided, further, that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Nonnon-Defaulting Revolving Lender will constitute a waiver or release of any claim of any party hereunder arising from such Revolving Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Chemours Co)
