Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender: 2.11.1 Facility Fees shall cease to accrue on the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder); 2.11.2 the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.9), except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender; 2.11.3 if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then: (i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares but only to the extent the sum of all non-Defaulting 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; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists; (ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower shall within one Banking Day following notice by Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 for so long as such LC Exposure is outstanding; (iii) if Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 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 clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate 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 LC Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and 2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10, and participating interests in any 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 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Share.
Appears in 5 contracts
Samples: Credit Agreement (Tampa Electric Co), Credit Agreement (Tampa Electric Co), Credit Agreement (Tampa Electric Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder4.1(a);
2.11.2 (b) the Commitment of and the 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 (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.913.1), except ; provided that (i) any waiver, amendment or modification requiring the Commitment(s) consent of any all Lenders or each affected Lender which affects such Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent Commitment of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require may not be increased or extended without the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC Letter of Credit Exposure exists at the time such a Lender becomes a Defaulting Lender then:
Lender, then (i) all or any part of the Swingline Exposure and LC such Letter of Credit Exposure of such Defaulting Lender shall and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders pro rata in accordance with their respective Proportionate Shares but only Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the sum “unreallocated portion”) of all non-Defaulting Lenders’ Revolving Credit Exposures plus such the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effectedso reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within one Banking Day two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 2.2.10 3.8 for so long as such LC Letter of Credit Exposure is outstanding;
, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to clause (ii) abovethe requirements of this Section 2.16(c), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 4.1(c) with respect to such Defaulting Lender’s LC Letter of Credit Exposure during the period such Defaulting Lender’s LC Letter of Credit Exposure is Cash Collateralized;
, (iv) if the LC Letter of Credit Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) abovethe requirements of this Section 2.16(c), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 4.1(c) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate Shares; and
Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (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) abovethe requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of any LC Issuing Bank the Letter of Credit Issuer or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 4.1(c) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the relevant LC Issuing Bank Letter of Credit Issuer until and to the extent that such LC Letter of Credit Exposure is reallocated Cash Collateralized and/or Cash Collateralized; andreallocated;
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall (d) (i) the Letter of Credit Issuer will not be required to fund issue any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any new Letter of CreditCredit 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 Swingline Lender or LC Issuing Bank, as the case may be, Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the related exposure and the to such Defaulting Lender’s then outstanding LC Exposure will be 100% Lender is eliminated or fully covered by the Revolving Credit Commitments of the nonNon-Defaulting Lenders and/or or by Cash Collateral will be provided by Borrower Collateralization or a combination thereof in accordance with the requirements of Section 2.2.10, and participating interests 2.16(c) above or otherwise in any newly made Swingline Loan or any newly issued or increased a manner reasonably satisfactory to the Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Share.Issuer; and
Appears in 5 contracts
Samples: Incremental Agreement (Snap One Holdings Corp.), Credit Agreement (Snap One Holdings Corp.), Incremental Agreement (MultiPlan Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue pursuant to Section 2.5(a) and (b) on the Commitment of such Defaulting Lender pursuant to Section 2.4.1 solely in respect of its unused Commitments;
(except to the extent allocable to (ib) the outstanding principal amount of the Revolving Loans funded by it Commitments and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Commitment and Revolving Credit Exposure Aggregate Outstandings of such Defaulting Lender shall not be included in determining whether the all Lenders, all affected Lenders or Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.98.2), except provided that (i) the Commitment(s) of any Defaulting Lender may not be increased waiver, amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other affected Lenders (other than as a result of such Defaulting Lender having a greater or lesser Aggregate Outstandings or Commitments) or which increases the amount of any Commitment of such Defaulting Lender, forgives any principal amount of any Loans owing to such Defaulting Lender or any interest (other than default interest) or fees owing to such Defaulting Lender previously accrued at the time of such forgiveness or extends the termination date of such Commitment or extends the final maturity beyond the then maturity date of any Loan, Note or Reimbursement Obligation with respect to such Defaulting Lender shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure Swing Loans or LC Exposure exists Facility Letter of Credit Obligations exist at the time such a Revolving Credit Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure such Defaulting Lender’s Pro Rata Share of such Defaulting Lender Swing Loans and Facility Letter of Credit Obligations shall be reallocated among the non-Defaulting Lenders having a Revolving Credit Commitment in accordance with their respective Proportionate Pro Rata Shares but only to the extent the sum of all non-Defaulting Lenders’ Aggregate Revolving Credit Exposures Outstandings plus such Defaulting Lender’s Swingline Exposure Pro Rata Share of Swing Loans and LC Exposure Facility Letter of Credit Obligations does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) to the extent, if any, the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower the Borrowers shall within one Banking Day three Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure Swing Loans and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure Pro Rata Share of such Facility Letter of Credit Obligations (in each case after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 8.1 for so long as such LC Exposure is outstandingFacility Letter of Credit Obligations are outstanding and such Defaulting Lender remains a Defaulting Lender, provided that no Foreign Subsidiary Borrower shall be obligated to make any such payment in excess of, respectively, the principal amount of any outstanding Swing Loans made to it or the amount of any Facility Letter of Credit Obligations in respect of Facility Letters of Credit issued for its account;
(iii) if Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure Pro Rata Share of Facility Letter of Credit Obligations pursuant to clause (ii) aboveSection 8.1, no Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender (or to the Administrative Agent or Issuer for the benefit thereof) pursuant to Section 2.4.2 2.15.6 with respect to such Defaulting Lender’s LC Exposure Pro Rata Share of Facility Letter of Credit Obligations during the period such Defaulting Lender’s LC Exposure Pro Rata Share of Facility Letter of Credit Obligations is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure Pro Rata Share of Facility Letter of Credit Obligations of the non-Defaulting Lenders is reallocated pursuant to clause (i) abovethis Section 2.17(c), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.5 and Section 2.15.6 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate Pro Rata Shares; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure Pro Rata Share of Facility Letter of Credit Obligations 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 LC Issuing Bank the Issuer or any Lender hereunder, all Facility Fees facility fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Pro Rata Share of Facility Letter of Credit Obligations) and letter of credit fees payable under Section 2.4.2 2.15.6 with respect to such Defaulting Lender’s LC Exposure Pro Rata Share of Facility Letter of Credit Obligations shall be payable to the relevant LC Issuing Bank Issuer until and to the extent that such LC Exposure Pro Rata Share of Facility Letter of Credit Obligations is reallocated cash collateralized and/or Cash Collateralized; andreallocated;
2.11.4 (d) so long as such any Revolving Credit Lender is a Defaulting Lender, no Swingline the Swing Lender shall not be required to fund any Swingline Swing Loan and no LC Issuing Bank the Issuer shall not be required to issue, amend or increase any Facility Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is reasonably satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by Borrower the Borrowers in accordance with this Section 2.2.102.17 and Section 8.1, and participating interests in any newly made Swingline Loan or any such newly issued or increased Facility Letter of Credit or newly made Swing Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 2.17(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; 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 but excluding Section 3.5) 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) a bankruptcy event (as first, to the payment of any amounts owing by such term is defined in clause (d) of Defaulting Lender to the definition of “Defaulting Lender”) with respect to any Person as to which any Lender isAdministrative Agent hereunder, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) second, pro rata, to the payment of any Swingline amounts owing by such Defaulting Lender to the Issuer or Swing Lender hereunder, (iii) third, to the funding of any Loan or the funding or cash collateralization of any participating interest in any Swing Loan or Facility 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 Borrowers, 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 or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers or any LC Issuing Bank has Lender against such Defaulting Lender as a good faith belief that any Lender has defaulted in fulfilling result of such Defaulting Lender’s breach of its obligations under one or more other agreements in which this Agreement and (vi) sixth, to such Lender commits to extend credit, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such LC Issuing Bank, as payment is (x) a prepayment of the case may be, shall have entered into arrangements with Borrower principal amount of any Loans or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it reimbursement obligations in respect of Reimbursement Obligations for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.4 are satisfied, such Lender hereunderpayment 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, Borrowerthe Borrowers, the Swingline Lenders Issuer and the LC Issuing Banks Swing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender and the Swingline Exposure Pro Rata Shares of Swing Loans and LC Exposure Facility Letter of Credit Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Pro Rata Share; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of any Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
Appears in 5 contracts
Samples: Credit Agreement (DIEBOLD NIXDORF, Inc), Credit Agreement (DIEBOLD NIXDORF, Inc), Credit Agreement (Diebold Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.4.1 2.6;
(except to the extent allocable to (ib) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Commitment Commitments and Revolving Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including hereunder, provided that any consent to any amendmentwaiver, waiver amendment or other modification pursuant to Section 7.9), except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender, and any waiver, amendment or modification requiring the consent of any affected Lender or all affected Lenders or such Lender shall require the consent of such Defaulting Lender that is an affected Lender or such Lender;
2.11.3 (c) if any Swingline Exposure Loans or LC Exposure L/C Obligations exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure Loans and LC Exposure of such Defaulting Lender L/C Obligations shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Revolving Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsRevolving Commitments and (y) the conditions set forth in Section 5.2 are satisfied at such time; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the Swingline Exposure Loans and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure Revolving Percentage of the L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 8 for so long as such LC Exposure is L/C Obligations are outstanding, unless the Swingline Lender or the applicable Issuing Lender, as applicable, have agreed on an alternate arrangement;
(iii) if the applicable Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure Revolving Percentage of the L/C Obligations pursuant to clause (ii) aboveSection 2.21(c), such Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 3.3 with respect to such Defaulting Lender’s LC Exposure Revolving Percentage of the L/C Obligations during the period of such Defaulting Lender’s LC Exposure is Cash Collateralizedcollateralization;
(iv) if the LC Exposure Revolving Percentages of the L/C Obligations of the non-Defaulting Lenders is are reallocated pursuant to clause (i) aboveSection 2.21(c), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 3.3 shall be correspondingly adjusted in accordance with for the benefit of such non-Defaulting Lenders’ Proportionate SharesLenders in accordance with their Revolving Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure Revolving Percentage of the L/C Obligations is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (i) or (ii) aboveSection 2.21(c), then, without prejudice to any rights or remedies of any LC the applicable Issuing Bank Lender or any Lender hereunder, all Facility Fees fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 3.3 with respect to such Defaulting Lender’s LC Exposure Revolving Percentage of the L/C Obligations shall be payable to the relevant LC applicable Issuing Bank Lender until and to such Revolving Percentage of the extent that such LC Exposure L/C Obligations is reallocated cash collateralized and/or Cash Collateralized; andreallocated;
2.11.4 (d) so long as such any Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank Lenders shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, 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 cash collateral will be provided by Borrower the Borrowers in accordance with Section 2.2.102.21(c), and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 2.21(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ;
(ie) a bankruptcy event (as such term is defined in clause (d) if no Swingline Loans or L/C Obligations then exist, or all the obligations of the definition Defaulting Lender in respect of “Defaulting Lender”the outstanding Swingline Loans or L/C Obligations have been reallocated, cash collateralized or prepaid as contemplated in paragraph (c)(i) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) of this Section 2.21, the Company shall have the right, notwithstanding Section 2.15, to terminate the Revolving Commitment of such Defaulting Lender only upon not less than three Business Days prior notice to the Administrative Agent and payment in full on the date of such termination to the Administrative Agent, for the account of such Defaulting Lender, of the principal and accrued interest and fees then owing to such Defaulting Lender, with the Company remaining liable to such Defaulting Lender under Section 2.18 if such payment is made in respect of any Eurocurrency Loan other than on the last day of the Interest Period relating thereto; and
(f) any amount payable to such Defaulting Lender hereunder on account of any fees 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 Lenders 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 LC Issuing Bank has a good faith belief that any Lender has defaulted existing or future participating interest in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be(iv) fourth, to defease the funding of any risk to it Loan in respect of which such Defaulting Lender hereunderhas 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, and (vi) sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction. In the event that the Administrative Agent, Borrowerthe Company, the Swingline Issuing Lenders and the LC Issuing Banks Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure Revolving Percentages of the non-Defaulting Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareRevolving Percentage.
Appears in 4 contracts
Samples: Credit Agreement (First Solar, Inc.), Credit Agreement (First Solar, Inc.), Credit Agreement (First Solar, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility (a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder4.1(a);
2.11.2 the (b) The Commitment and Revolving Credit Total Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders or the Required Lenders or Borrowing Base Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.913.1), except ; provided that (i) any waiver, amendment or modification requiring the Commitment(sconsent of all Lenders pursuant to Section 13.1 (other than Section 13.1(x)) or requiring the consent of each affected Lender pursuant to Section 13.1(i) or (ix), shall require the consent of such Defaulting Lender (which for the avoidance of doubt would include any change to the Maturity Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default interest rates) and any increase in such Defaulting Lender’s Commitment) and (ii) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e., the Commitment Percentage of the Borrowing Base) of any a Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 if (c) If any Swingline Exposure or LC Letter of Credit Exposure exists at the time such a Lender becomes a Defaulting Lender then:
Lender, then (i) all or any part of the such Swingline Exposure and LC Letter of Credit Exposure of such Defaulting Lender shall will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders pro rata in accordance with their respective Proportionate Shares but only Commitment Percentages; provided that (A) each Non-Defaulting Lender’s Total Exposure may not in any event exceed the Commitment Percentage of the Loan Limit of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuers or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the sum “unreallocated portion”) of all non-Defaulting Lenders’ Revolving Credit Exposures plus such the Defaulting Lender’s Swingline Exposure and LC or Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effectedso reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.15(c)(i) or otherwise, the Borrower shall within one Banking Day two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks applicable Letter of Credit Issuer’ only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) ), in accordance with the procedures set forth in Section 2.2.10 3.8 for so long as such LC Letter of Credit Exposure is outstanding;
, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to clause (ii) aboveSection 2.15(c), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 4.1(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure during the period such Defaulting Lender’s LC Letter of Credit Exposure is Cash Collateralized;
, (iv) if the LC Letter of Credit Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.15(c), then the Letter of Credit fees Fees payable to for the account of the Lenders pursuant to Section 2.4.2 4.1(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate Shares; and
Commitment Percentages and the Borrower shall not be required to pay any Swingline or Letter of Credit Fees to the Defaulting Lender pursuant to Section 4.1(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (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 2.15(c), then, without prejudice to any rights or remedies of any LC Issuing Bank the Letter of Credit Issuer or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit fees Fees payable under Section 2.4.2 4.1(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the relevant LC Issuing Bank Letter of Credit Issuer until and to the extent that such LC Letter of Credit Exposure is reallocated Cash Collateralized and/or Cash Collateralized; andreallocated;
2.11.4 so (d) So long as such any Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC Issuing Bank shall Letter of Credit Issuer will be required to issue, amend or increase issue any new Letter of CreditCredit or amend any outstanding Letter of Credit to increase the Stated Amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless such Swingline Lender or LC Issuing Bank, as the case may be, Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the related exposure and the to such Defaulting Lender’s then outstanding LC Exposure will be 100% Lender is eliminated or fully covered by the Commitments of the nonNon-Defaulting Lenders and/or or by Cash Collateral will be provided by Borrower Collateralization or a combination thereof in accordance with Section 2.2.10clause (c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer, and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.2.7 2.15(c)(i) (and such Defaulting Lender Lenders shall not participate therein). ; and
(e) If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Administrative Agent , the Swingline Lenders Lender and the LC Issuing Banks each agrees Letter of Credit Issuer agree in writing in their discretion that a Lender that is a Defaulting Lender has adequately remedied all matters that caused such Lender should no longer be deemed to be a Defaulting Lender, then the Swingline Exposure Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and LC subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Letter of Credit Exposure of the Lenders such Lender reallocated pursuant to Section 2.15(c) shall be readjusted reallocated back to reflect such Lender; provided that, except to the inclusion extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s Commitment having been a Defaulting Lender.
(f) 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 Section 11 or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 13.8), 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 each Letter of Credit Issuer and the Swingline Lender 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 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 Borrower, 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; fifth, to the payment of any amounts owing to the Lenders, the Letter of Credit Issuers or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such date Letter of Credit Issuer or the Swingline Lender against that Defaulting Lender as a result of that 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 that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and seventh, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such Lender shall purchase at par such payment is a payment of the principal amount of any Loans of or Unpaid Drawings, such payment shall be applied solely to pay the relevant Loans of, and Unpaid Drawings owed to, the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section 2.15(f). Any payments, prepayments or other Lenders amounts paid or payable to a Defaulting Lender that are applied (other than Swingline Loansor held) as Administrative Agent to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to Section 3.8 shall determine may be necessary in order for such deemed paid to and redirected by that Defaulting Lender, and each Lender to hold such Loans in accordance with its Proportionate Shareirrevocably consents hereto.
Appears in 4 contracts
Samples: Credit Agreement (Samson Resources Corp), Fourth Amendment Agreement (Samson Resources Corp), Credit Agreement (Samson Resources Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder4.1(a);
2.11.2 (b) the Commitment of and the 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 (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.913.1), except ; provided that (i) any waiver, amendment or modification requiring the Commitment(s) consent of any all Lenders or each affected Lender which affects such Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent Commitment of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require may not be increased or extended without the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC Letter of Credit Exposure exists at the time such a Lender becomes a Defaulting Lender then:
Lender, then (i) all or any part of the Swingline Exposure and LC such Letter of Credit Exposure of such Defaulting Lender shall and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders pro rata in accordance with their respective Proportionate Shares but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed Commitment Percentage; of the total applicable Class of all non-Defaulting Lenders’ Revolving Credit Commitments; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation shall and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be given effect only if, at the date the applicable Lender becomes a Non-Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if to the reallocation described in clause extent that all or any portion (ithe “unreallocated portion”) above of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be effectedso reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within one Banking Day two Business Days following notice by the Administrative Agent Agent, (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 2.2.10 3.8 for so long as such LC Letter of Credit Exposure is outstanding;
, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to clause (ii) abovethe requirements of this Section 2.16(c), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 4.1(c) with respect to such Defaulting Lender’s LC Letter of Credit Exposure during the period such Defaulting Lender’s LC Letter of Credit Exposure is Cash Collateralized;
, (iv) if the LC Letter of Credit Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) abovethe requirements of this Section 2.16(c), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 4.1(c) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate Shares; and
Revolving Credit Commitment Percentages of the applicable Class of Revolving Credit Commitments and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (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) abovethe requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of any LC Issuing Bank the Letter of Credit Issuer or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 4.1(c) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the relevant LC Issuing Bank Letter of Credit Issuer until and to the extent that such LC Letter of Credit Exposure is reallocated Cash Collateralized and/or Cash Collateralized; andreallocated;
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall (d) (i) the Letter of Credit Issuer will not be required to fund issue any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any new Letter of CreditCredit 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 Swingline Lender or LC Issuing Bank, as the case may be, Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the related exposure and the to such Defaulting Lender’s then outstanding LC Exposure will be 100% Lender is eliminated or fully covered by the Revolving Credit Commitments of the nonNon-Defaulting Lenders and/or or by Cash Collateral will be provided by Borrower Collateralization or a combination thereof in accordance with the requirements of Section 2.2.10, and participating interests 2.16(c) above or otherwise in any newly made Swingline Loan or any newly issued or increased a manner reasonably satisfactory to the Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Share.Issuer; and
Appears in 4 contracts
Samples: Credit Agreement (Grocery Outlet Holding Corp.), Incremental Agreement (Grocery Outlet Holding Corp.), Incremental Agreement (Grocery Outlet Holding Corp.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting LenderLender hereunder, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.8(a);
2.11.2 (b) the Commitment Commitments and the Total Revolving Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.911.1), except ; provided that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased or extended, or in the maturity case of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any an amendment, waiver or consent other modification requiring the consent of all the Lenders each Lender or each Lender affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby;
2.11.3 (c) if any Swingline Exposure Loan or LC Exposure exists Letter of Credit is outstanding at the time such Lender becomes a Defaulting Lender then:
(i) unless a Default shall have occurred and be continuing, all or any part of the Swingline Exposure Participation Amount and LC Exposure Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Alternative Currency Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Alternative Currency Revolving Extensions of Credit Exposures plus such Defaulting Lender’s Swingline Exposure Participation Amount and LC Exposure does Obligations do not exceed the total of all non-Defaulting Lenders’ Alternative Currency Revolving Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure Participation Amount and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 3.10 for so long as such LC Exposure is Obligations are outstanding;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Alternative Currency Revolving Percentage of the LC Exposure Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.8(c) with respect to such Defaulting Lender’s Alternative Currency Revolving Percentage of the LC Exposure Obligations during the period such Defaulting Lender’s LC Exposure is Cash CollateralizedObligations are cash collateralized;
(iv) if the LC Exposure Obligations of the non-Defaulting Lenders is are reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.8(a) and Section 2.8(c) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesAlternative Currency Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure Obligations 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 LC the Issuing Bank Lender or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.8(c) with respect to such Defaulting Lender’s LC Exposure Obligations shall be payable to the relevant LC Issuing Bank Lender until and to the extent that such LC Exposure is Obligations are reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure Obligations will be 100% covered by the Alternative Currency Revolving Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.102.26(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Alternative Currency Revolving Lenders in a manner consistent with Section 2.2.7 2.26(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a Parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any the Swingline Lender or any LC the Issuing Bank 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, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC the Issuing BankLender, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to such the Swingline Lender or such LC the Issuing BankLender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lenders Lender and the LC Issuing Banks Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure Participation Amount and LC Exposure Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Alternative Currency Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareRevolving Percentage.
Appears in 4 contracts
Samples: Credit Agreement (Davita Inc), Credit Agreement (Davita Inc), Credit Agreement (Davita Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender, to the extent permitted by applicable law:
2.11.1 Facility Fees (i) fees shall cease to accrue on the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount unfunded portion of the Revolving Loans funded by it Commitment of a Defaulting Lender, and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such no Defaulting Lender has provided Cash Collateral shall be entitled to receive any Revolving Commitment fees pursuant to Section 2.09(a) for any period during which that Lender is a Defaulting Lender (and the relevant Swingline Lender or LC Issuing Bank hereunderBorrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender);
2.11.2 (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.911.02), except ; provided that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased or extended, or in the maturity case of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any an amendment, waiver or consent other modification requiring the consent of all the Lenders each Lender or each Lender affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby;
2.11.3 (c) if any Swingline Exposure or LC Exposure Letter of Credit Usage exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure Letter of Credit Usage of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages but only to the extent that (x) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure Letter of Credit Usage does not exceed the total of all nonNon-Defaulting Lenders’ Revolving Commitments, and (y) the sum of any Non-Defaulting Lender’s Revolving Exposure plus its Pro Rata Share of such Defaulting Lender’s Letter of Credit Usage does not exceed such Non-Defaulting Lender’s Revolving Commitment; provided that each such no reallocation hereunder shall be given effect only if, at the date the applicable constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender becomes arising from that Lender having become a Defaulting Lender, no Inchoate Default or Event including any claim of Default existsa Non-Defaulting Lender as a result of such Non-Defaulting 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 Banking Business Day following notice by Administrative Agent (x) first, prepay such Swingline Exposure and (y) secondAgent, Cash Collateralize for the benefit of each applicable Issuing Bank only the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure 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 2.2.10 2.03(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 (iii) above, the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.09(a)(ii) with respect to such Defaulting Lender’s LC Exposure Letter of Credit Usage during the period such Defaulting Lender’s LC Exposure Letter of Credit Usage is Cash Collateralized;
(iv) if the LC Exposure all or any portion of the non-such Defaulting Lenders Lender’s Letter of Credit Usage is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.09(a)(i) and Section 2.09(a)(ii) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate SharesApplicable 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 LC Issuing Bank or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.09(a)(ii) with respect to such Defaulting Lender’s LC Exposure Letter of Credit Usage that is not so reallocated or Cash Collateralized shall be payable to the relevant LC applicable Issuing Bank until and to the extent that such LC Exposure Letter of Credit Usage is reallocated and/or Cash Collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure Letter of Credit Usage will be 100% covered by the Revolving Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral will be provided by the Borrower in accordance with Section 2.2.102.22(c)(ii), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.2.7 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If .
(i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a holding company of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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, no Swingline Lender shall be required to fund any Swingline Loan and no LC the applicable Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower or such Lender, reasonably satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Borrower, the Swingline Lenders Borrower and each of the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure Letter of Credit Usage of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage.
Appears in 4 contracts
Samples: Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the Commitment unfunded portion of the Commitments of such Defaulting Lender pursuant to Section 2.4.1 2.12(a);
(except to the extent allocable to (ib) the outstanding aggregate principal amount of the Loans, Revolving Loans funded by it L/C Exposures, Swingline Exposures and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Available Unused Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the all Lenders, Required Lenders, Majority Lenders or affected Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.99.08), except ; provided that (i) the Commitment(s) of any Defaulting Lender may not be increased waiver, amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other affected Lenders shall require the consent of such Defaulting Lender, (ii) the Commitment of such Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender and (iii) any amendment that reduces the principal amount of, or rate of interest on, any Loan made by such Defaulting Lender, shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC Revolving L/C Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC or Revolving L/C Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Revolving Facility Percentages but only to the extent (x) such reallocation does not cause the sum aggregate Revolving Facility Credit Exposure of all any non-Defaulting Lenders’ Revolving Credit Exposures plus Lender to exceed such non-Defaulting Lender’s Swingline Exposure Revolving Facility Commitment and LC Exposure does not exceed (y) the total of all non-Defaulting Lenders’ Commitmentsconditions set forth in Section 4.01 are satisfied at such time; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Day five Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Revolving L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.05(j) for so long as such LC Revolving L/C Exposure is outstanding;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Revolving L/C Exposure pursuant to clause (ii) aboveSection 2.22(c)(ii)(y), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.12 with respect to such Defaulting Lender’s LC Revolving L/C Exposure during the period such Defaulting Lender’s LC Revolving L/C Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Swingline Exposure or Revolving L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.22(c)(i), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.12 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesRevolving Facility Percentage; and
(v) if all or any portion of such Defaulting Lender’s LC Revolving L/C Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (iSection 2.22(c)(i) or (ii) above), then, without prejudice to any rights or remedies of any LC the Issuing Bank or any Lender hereunder, all Facility Fees facility fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Revolving L/C Commitment that was utilized by such LC Revolving L/C Exposure) and Letter of Credit fees all Revolving L/C Participation Fees payable under Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Revolving L/C Exposure shall be payable to the relevant LC applicable Issuing Bank until such Revolving L/C exposure is cash collateralized and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and/ or reallocated;
2.11.4 (d) so long as such any Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Revolving Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Facility Commitments of the non-Defaulting Lenders and/or Cash Collateral or cash collateral will be provided by the Borrower in accordance with Section 2.2.102.22(c), and participating interests in any such newly issued or increased Revolving Letter of Credit or 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 2.2.7 2.22(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(e) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender shall be applied at such time or times as may be determined by the Administrative Agent as follows: (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, to the payment on a bankruptcy event (as pro rata basis of any amounts owing by such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect Lender to any Person Issuing Bank or Swingline Lender, (iii) third, as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for Borrower may request (so long as such event shall continue 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, (iiiv) any Swingline Lender fourth, if so determined by the Administrative Agent or any LC requested by an Issuing Bank has a good faith belief that or Swingline Lender, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Lender has defaulted existing or future participating interest in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Revolving Letter of Credit, unless Borrower shall have Cash Collateralized (v) fifth, 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 Swingline Exposure breach of its obligations under this Agreement, (vi) sixth, so long as no Default or LC ExposureEvent 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 case may beBorrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement and (vii) seventh, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, provided, with respect to this clause (vii), that if such payment is (x) a prepayment of the principal amount of any Loans in respect of which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 2.11 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. 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 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, 2.05(j) shall have entered into arrangements with Borrower or such be deemed paid to and redirected by that Defaulting Lender, satisfactory to such Swingline and each Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. irrevocably consents hereto.
(f) In the event that the Administrative Agent, the Borrower, the each Issuing Bank and each Swingline Lenders and the LC Issuing Banks Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Revolving L/C Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Facility Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareRevolving Facility Percentage.
Appears in 4 contracts
Samples: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP)
Defaulting Lenders. Notwithstanding any provision of this Agreement any Loan Document to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility (i) Commitment Fees otherwise payable pursuant to Section 3.05(a) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and Lender.
(ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the The Commitment and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Majority Lenders or each adversely affected Lender have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.912.02), except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the no consent of such Defaulting Lender and shall be required to take any action hereunder that requires the consent of all Lenders, the Majority Lenders or each adversely affected Lender (iiincluding any consent to any amendment or waiver pursuant to Section 12.02), provided that any waiver, amendment or modification (A) that would increase the Commitment of such Defaulting Lender, (B) that would reduce the principal of any amendment, waiver Loan owed to such Defaulting Lender or consent extend the final maturity thereof or (C) requiring the consent of all the Lenders or each adversely affected Lender that by its terms which affects any such Defaulting Lender more differently than all other Lenders or all other adversely than affected Lenders, as the other affected Lenders case may be, shall require the consent of such Defaulting Lender;; provided further, that any amendment to the foregoing proviso shall require the consent of all Lenders, including any Defaulting Lenders.
2.11.3 if (iii) If any Swingline LC Exposure or LC Swingline Exposure exists at the time such a Lender becomes a Defaulting Lender Lender, then:
(iA) all or any part of the such LC Exposure or Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages (for the purposes of such reallocation, the Defaulting Lender’s Commitment shall be disregarded in determining the Non-Defaulting Lenders’ Applicable Percentages), but only to the extent that (x) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline LC Exposure and LC Swingline Exposure does not exceed the total of all nonNon-Defaulting Lenders’ Commitments; provided that , (y) the sum of each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Non-Defaulting Lender, ’s Revolving Credit Exposure plus its reallocated share of such Defaulting Lender’s LC Exposure and Swingline Exposure does not exceed such Non-Defaulting Lender’s Commitment and (z) no Inchoate Default or Event of Default existshas occurred and is continuing at such time;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall shall, within one Banking Day three (3) Business Days following written notice by from the Administrative Agent (x) firstAgent, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure and Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2.10 2.07(e) for so long as such LC Exposure or Swingline 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) abovethis Section 4.03(c)(iii), then the Borrower shall not be required to pay any Letter of Credit participation fees to such Defaulting Lender pursuant to Section 2.4.2 3.05(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(ivD) if all or any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) abovethis Section 4.03(c)(iii), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 Sections 3.05(a) and 3.05(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate SharesApplicable Percentages; and
(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 (i) or (ii) abovethis Section 4.03(c)(iii), then, without prejudice to any rights or remedies of any LC Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 3.05(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant applicable Issuing Banks, ratably based on the portion of such LC Exposure attributable to Letters of Credit issued by each such Issuing Bank Bank, until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required cash collateralized pursuant to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10, and participating interests in any 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 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (dA) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (iiB) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Shareabove.
Appears in 4 contracts
Samples: Credit Agreement (Exterran Corp), Credit Agreement (Exterran Corp), Credit Agreement (Exterran Holdings Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) commitment fees pursuant to Section 2.11(a) shall cease to accrue on the unfunded portion of the Revolver Commitment of such Defaulting Lender pursuant to Section 2.4.1 Lender;
(except to the extent allocable to (ib) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Commitment and Revolving Credit Exposure Facility Usage and Letter of Credit Usage of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.911.2); provided, except that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased in the case of an amendment, waiver or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without other modification requiring the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each Lender affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby;
2.11.3 (c) if any Swingline Exposure or LC Exposure Letter of Credit Usage exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure Letter of Credit Usage of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Pro Rata Share but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures Facility Usage plus such Defaulting Lender’s Swingline Exposure and LC Exposure Letter of Credit Usage does not exceed the total of all non-Defaulting Lenders’ Commitments; Revolver Commitments and provided that each at no time shall the sum of any Lender’s aggregate Advances and such reallocation shall be given effect only if, at Lender’s Pro Rata Share of the date the applicable Lender becomes a Defaulting aggregate Letter of Credit Usage exceed such Lender, no Inchoate Default or Event of Default exists’s Revolver Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Day two Business Days following notice by Administrative Agent (x) firstthe Agent, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of each Issuing Lender only the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) Letter of Credit Usage in accordance with the procedures set forth in Section 2.2.10 for so long as such LC Exposure is outstanding2.10;
(iii) if the Borrower Cash Collateralizes 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 any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.3(g) with respect to such Defaulting Lender’s LC Exposure Letter of Credit Usage during the period such Defaulting Lender’s LC Exposure Letter of Credit Usage is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure Letter of Credit Usage of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.11(a) and Section 2.3(g) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesPro Rata Share; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure Letter of Credit Usage 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 LC Issuing Bank Lender or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.3(g) with respect to such Defaulting Lender’s LC Exposure Letter of Credit Usage shall be payable to the relevant LC respective Issuing Bank Lender until and to the extent that such LC Exposure Letter of Credit Usage is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (vi) so long as such Lender is a Defaulting Lender, no Swingline an Issuing Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure Letter of Credit Usage will be 100% covered by the Revolver Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.102.22(c), and participating interests in any 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 2.2.7 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If .
(ia) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof Restatement Effective Date and for so long as such event shall continue or (iib) any Swingline an Issuing Lender or any LC 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 Swingline such Issuing Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline an Issuing Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Swingline Issuing Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative the Agent, the Borrower, the Swingline Lenders and the LC such Issuing Banks Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure Letter of Credit Usage of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative the Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Pro Rata Share.
Appears in 3 contracts
Samples: Amendment No. 5 (Ares Management Lp), Amendment No. 4 (Ares Management Lp), Credit Agreement (Ares Management Lp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (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 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder)Lender;
2.11.2 (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the 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 7.99.02, except for any amendment or waiver described in Section 9.02(b)(i), except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) or (iii)), provided that any amendmentwaiver, waiver amendment or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and such LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages but only to the extent (x) the sum of all non-Defaulting 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; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a (y) no non-Defaulting Lender’s Revolving Credit Exposure will exceed such Lender’s Commitment, no Inchoate Default or Event of Default existsand (z) the conditions set forth in Section 4.02 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 Banking Day three Business Days following notice by the Administrative Agent (x) firstAgent, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.04(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 any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.10(a) and Section 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable Percentages; and
(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 LC the Issuing Bank or any Lender hereunder, all Facility Fees facility fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter letter of Credit credit fees payable under Section 2.4.2 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or Cash Collateralizedreallocated; and
2.11.4 (d) so long as such any Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.102.17(c), and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 2.17(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, Borrower, the Swingline Lenders Borrower and the LC Issuing Banks Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage.
Appears in 3 contracts
Samples: Senior Secured Revolving Credit Agreement (Fifth Street Finance Corp.), Senior Secured Revolving Credit Agreement (Fifth Street Finance Corp), Senior Secured Revolving Credit Agreement (Fifth Street Finance Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder4.1(a);
2.11.2 (b) the Commitment of and the 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 (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.913.1), except ; provided that (i) any waiver, amendment or modification requiring the Commitment(s) consent of any all Lenders or each affected Lender which affects such Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent Commitment of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require may not be increased or extended without the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC Letter of Credit Exposure exists at the time such a Lender becomes a Defaulting Lender then:
Lender, then (i) all or any part of the Swingline Exposure and LC such Letter of Credit Exposure of such Defaulting Lender shall and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders pro rata in accordance with their respective Proportionate Shares but only Revolving Credit Commitment Percentages; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, any Letter of Credit Issuer, any Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the sum “unreallocated portion”) of all non-Defaulting Lenders’ Revolving Credit Exposures plus such the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effectedso reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 2.2.10 3.8 for so long as such LC Letter of Credit Exposure is outstanding;
, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to clause (ii) abovethe requirements of this Section 2.16(c), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 4.1(c) with respect to such Defaulting Lender’s LC Letter of Credit Exposure during the period such Defaulting Lender’s LC Letter of Credit Exposure is Cash Collateralized;
, (iv) if the LC Letter of Credit Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) abovethe requirements of this Section 2.16(c), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 4.1(c) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate Shares; and
Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (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) abovethe requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of any LC Issuing Bank Letter of Credit Issuer or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 4.1(c) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the relevant LC Issuing Bank Letter of Credit Issuers until and to the extent that such LC Letter of Credit Exposure is reallocated Cash Collateralized and/or Cash Collateralized; andreallocated;
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall (d) (i) No Letter of Credit Issuer will be required to fund issue any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any new Letter of CreditCredit 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 Swingline Lender or LC Issuing Bank, as the case may be, Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the related exposure and the to such Defaulting Lender’s then outstanding LC Exposure will be 100% Lender is eliminated or fully covered by the Revolving Credit Commitments of the nonNon-Defaulting Lenders and/or or by Cash Collateral will be provided by Borrower Collateralization or a combination thereof in accordance with the requirements of this Section 2.2.10, and participating interests 2.16 or otherwise in any newly made Swingline Loan or any newly issued or increased a manner reasonably satisfactory to such Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Share.Issuer; and
Appears in 3 contracts
Samples: Ninth Amendment (LPL Financial Holdings Inc.), Eighth Amendment (LPL Financial Holdings Inc.), Seventh Amendment (LPL Financial Holdings Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility (i) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and 3.05(a).
(ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to The Commitment, the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 Maximum Credit Amount and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.912.02); provided that any waiver, except that (i) the Commitment(s) of any Defaulting Lender may not be increased amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender;; and provided, further, that any redetermination or affirmation of the 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; provided, that, subject to Section 12.19, no such reallocation will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank or any Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender.
2.11.3 if (iii) If any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(iA) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares 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 (1) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all nonNon-Defaulting Lenders’ CommitmentsCommitments and (2) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure plus its reallocated share of such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment; provided further that, subject to Section 12.19, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that each such reallocation shall be given effect only if, at the date the applicable Lender becomes Xxxxxx having become a Defaulting Lender, no Inchoate Default or Event including any claim of Default existsa Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) ), or otherwise backstop such LC Exposure in such amounts and pursuant to such arrangements as are satisfactory to the Issuing Bank in its sole discretion, in accordance with the procedures set forth in Section 2.2.10 2.08(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 or backstops any portion of such Defaulting Lender’s LC Exposure pursuant to clause (iiB) above, then the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 3.05(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized or otherwise backstopped;
(ivD) if the LC Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (iA) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 3.05(a) and Section 3.05(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate SharesApplicable Percentages; and
(vE) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized nor backstopped pursuant to clause (iA) or (iiB) above, then, without prejudice to any rights or remedies of any LC the Issuing Bank or any other Lender hereunder, all Facility Fees commitment fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter letter of Credit credit fees payable under Section 2.4.2 3.05(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized or otherwise backstopped; and
2.11.4 so (iv) So long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral cash collateral or other backstop arrangement will be provided by the Borrower in accordance with Section 2.2.104.03(c), and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.2.7 4.03(c)(iii)(A) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event or a Bail-In Action with respect to any Person as to which a Lender Parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof Effective Date and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 creditcontinue, no Swingline Lender shall be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, Borrower, the Swingline Lenders Borrower and the LC Issuing Banks Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender and such Lender is no longer a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date date, if necessary, such Lender shall purchase at par such of the Loans and/or participations in Letters of Credit of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans and/or participations in Letters of Credit in accordance with its Proportionate ShareApplicable Percentage.
Appears in 3 contracts
Samples: Credit Agreement (Sitio Royalties Corp.), Credit Agreement (STR Sub Inc.), Credit Agreement (Sitio Royalties Corp.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees shall cease to accrue on the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (ia) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.9), except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 if any Swingline Exposure or LC Existing Letter of Credit Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among Borrower shall, within one Business Day following notice by the non-Defaulting Lenders Administrative Agent, cash collateralize in accordance with their respective Proportionate Shares but only a manner reasonably satisfactory to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus applicable Issuing Lender such Defaulting Lender’s Swingline Existing Letter of Credit Exposure and LC Exposure does not exceed the total in an aggregate amount equal to 100% of all non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event ’s Existing Letter of Default existsCredit Exposure for so long as such Existing Letter of Credit Exposure is outstanding (the “Existing Letter of Credit Back-Stop Arrangements”);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower shall within one Banking Day following notice by Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 4.01(a) 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 clause (i) above, then the Existing Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesExposure; and
(viii) if all or any portion of such Defaulting Lender’s LC Existing Letter of Credit Exposure is neither reallocated nor Cash Collateralized not cash collateralized pursuant to clause (i) or (ii) abovethis Section 2.13(a), then, without prejudice to any rights or remedies of any LC Issuing Bank Lender or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Existing Letter of Credit fees Fees payable under Section 2.4.2 4.01(a) with respect to such Defaulting Lender’s LC Existing Letter of Credit Exposure shall be payable to the relevant LC each Issuing Bank Lender until and to the extent that such LC Existing Letter of Credit Exposure is reallocated cash collateralized and/or Cash Collateralizedreallocated; and
2.11.4 (b) notwithstanding anything to the contrary contained in Section 2.01 or Section 3, so long as such any Lender is a Defaulting Lender, no Swingline Issuing Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase renew any Existing Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10, and participating interests in any 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 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, Borrower, the Swingline Lenders Borrower and the LC each Issuing Banks Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then so long as no Event of Default then exists, all funds held as cash collateral pursuant to the Swingline Exposure and LC Exposure Existing Letter of Credit Back-Stop Arrangements shall thereafter be promptly returned to the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of Borrower. If the Loans and all other Obligations have been paid in full and no Existing Letters of Credit are outstanding, then all funds held as cash collateral pursuant to the other Lenders (other than Swingline Loans) Existing Letter of Credit Back-Stop Arrangements shall thereafter be returned to the Borrower as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Sharepromptly as practicable.
Appears in 3 contracts
Samples: Credit Agreement (Gener8 Maritime, Inc.), Credit Agreement (Gener8 Maritime, Inc.), Credit Agreement (General Maritime Corp / MI)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.12(a);
2.11.2 (b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendmentwaiver, waiver amendment or other modification pursuant to Section 7.9)9.02; provided, except that no such amendment, modification or waiver shall (i) increase the Commitment(s) Commitment of any such Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and Lender, (ii) reduce or forgive the principal amount of any amendmentLoan or LC Disbursement of such Defaulting Lender or reduce the rate of interest thereon, waiver or consent requiring reduce or forgive any interest or fees payable to such Defaulting Lender hereunder, without the written consent of all the Lenders or each affected Lender that by its terms affects any such Defaulting Lender more adversely than or (iii) postpone any scheduled date of payment of the principal amount of any Loan or LC Disbursement of such Defaulting Lender, or any date for the payment of any interest, fees or other affected Lenders shall require Obligations payable hereunder to such Defaulting Lender, or reduce the amount of, waive or excuse any such payment to such Defaulting Lender, or postpone the scheduled date of expiration of such Defaulting Lender’s Commitment without the written consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure, LC Exposure or LC Protective Advance Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) (x) all or any part of the Facility A Swingline Exposure, Facility A LC Exposure and LC Facility A Protective Advance Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders that are Facility A Lenders in accordance with their respective Proportionate Shares Applicable Percentages but only to the extent (1) the sum of all the Facility A Credit Exposures of all non-Defaulting Lenders’ Revolving Credit Exposures Lenders plus such Defaulting Lender’s Facility A Swingline Exposure, Facility A LC Exposure and LC Facility A Protective Advance Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided Facility A Commitments and (2) after giving effect to such reallocation, the Facility A Credit Exposure of each non-Defaulting Lender that each is a Facility A Lender does not exceed its Facility A Commitment and (y) all or any part of the Facility B Swingline Exposure, Facility B LC Exposure and Facility B Protective Advance Exposure of such reallocation Defaulting Lender shall be given effect reallocated among the non-Defaulting Lenders that are Facility B Lenders in accordance with their respective Applicable Percentages but only if, at to the date extent (1) the applicable Lender becomes a sum of all the Facility B Credit Exposures of all non-Defaulting Lenders plus such Defaulting Lender’s Facility B Swingline Exposure, no Inchoate Default or Event Facility B LC Exposure and Facility B Protective Advance Exposure does not exceed the total of Default existsall non-Defaulting Lenders’ Facility B Commitments and (2) after giving effect to such reallocation, the Facility B Credit Exposure of each non-Defaulting Lender that is a Facility B Lender does not exceed its Facility B Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower the Borrowers shall within one Banking Day five Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and Protective Advance Exposure, (y) second, Cash Collateralize prepay such Swingline Exposure and (z) third, cash collateralize for the benefit of the LC Issuing Banks Bank only Borrower’s the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (in each case after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.06(j) for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower the Borrowers shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders that are Revolving Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable 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 LC the Issuing Bank or any other Revolving Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is reasonably 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 cash collateral will be provided by Borrower the Borrowers in accordance with Section 2.2.102.21(c), and participating interests in any 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 2.2.7 2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event or Bail-In Action with respect to any Person as to which a Parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any the Swingline Lender or any LC 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 Revolving Lender commits to extend credit, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC the Issuing Bank, as the case may be, shall have entered into arrangements with Borrower the Borrowers or such Revolving Lender, reasonably satisfactory to such the Swingline Lender or such LC the Issuing Bank, as the case may be, to defease any risk to it in respect of such Revolving Lender hereunder. In the event that Administrative Agentthe Administrative, Borrowerthe Borrowers, the Swingline Lenders Lender and the LC Issuing Banks Bank each agrees that a Defaulting Lender that is a Revolving Lender has adequately remedied (in their reasonable judgment) all matters that caused such Revolving Lender to be a Defaulting Lender, then the Swingline Exposure, LC Exposure and LC Protective Advance 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 Proportionate ShareApplicable Percentage.
Appears in 3 contracts
Samples: Credit Agreement (ODP Corp), Second Amendment (ODP Corp), Credit Agreement (Office Depot Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility (a) Fees set forth in Section 2.10(a) shall cease to accrue on the Commitment unfunded portion of the Commitments of such Defaulting Lender;
(b) To the extent permitted by applicable Law, any voluntary prepayment of Revolving Loans shall, if Borrower so directs at the time of making such voluntary prepayment, be applied to the Revolving Loans of other Lenders as if such Defaulting Lender had no Revolving Loans outstanding and the Aggregate Exposure of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount in respect of the its Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder)Commitment were zero;
2.11.2 the Commitment and Revolving Credit (c) The Aggregate Exposure of such Defaulting Lender shall not be included in determining whether the all Lenders or Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.910.01), except provided that (i) the Commitment(s) of any Defaulting Lender may not be increased waiver, amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other affected Lenders shall require the consent of such Defaulting Lender and in any event, no such amendment, modification, or waiver shall increase the Revolving Commitments or the principal amount of any Loans of such Defaulting Lender, extend the maturity date applicable thereto or decrease the rate of interest (including any commitment fees) payable in respect thereof without the consent of such Defaulting Lender;
2.11.3 if (d) If any Swingline Exposure or LC Exposure Letter of Credit Usage exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure such Letter of such Defaulting Lender Credit Usage shall be reallocated among the non-Lenders that are not Defaulting Lenders in accordance with their respective Proportionate Shares but Revolving Percentages but, in any case, only to the extent the sum of the Outstanding Revolving Obligations of all non-Lenders that are not Defaulting Lenders’ Revolving Credit Exposures Lenders plus such Defaulting Lender’s Swingline Exposure and LC Exposure ratable participation in all Letter of Credit Usage does not exceed the total of the Revolving Commitments of all non-Lenders that are not Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower shall within one Banking Business Day following notice by Administrative Agent Agent, either (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure participation in all 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 2.2.10 a Letter of Credit Cash Collateral Account for so long as such LC Exposure Letter of Credit is outstandingoutstanding or (y) backstop such Letter of Credit Usage with a letter of credit reasonably satisfactory to the Issuing Lender;
(iii) if Borrower Cash Collateralizes cash collateralizes or backstops any portion of such Defaulting Lender’s LC Exposure Letter of Credit Usage pursuant to clause this subsection (ii) aboved), Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.03(j) with respect to such Defaulting Lender’s LC Exposure Letter of Credit Usage during the period such Defaulting Lender’s LC Exposure Letter of Credit Usage is Cash Collateralizedcash collateralized or backstopped;
(iv) if the LC Exposure Letter of Credit Usage attributable to the non-Defaulting Lenders is reallocated pursuant to clause this subsection (i) aboved), then the Letter of Credit fees payable to the non-Defaulting Lenders pursuant to Section 2.4.2 2.03(j) and Section 2.10(a) shall be adjusted in accordance with such the non-Defaulting Lenders’ Proportionate Sharesrespective Revolving Percentages to account for such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure participation in all Letter of Credit Usage is neither cash collateralized, backstopped nor reallocated nor Cash Collateralized pursuant to clause this subsection (i) or (ii) aboved), then, without prejudice to any rights or remedies of any LC Issuing Bank Lenders or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 2.03(j) with respect to such Defaulting Lender’s LC Exposure remaining participation in all Letter of Credit Usage shall be payable to the relevant LC applicable Issuing Bank Lenders until and to the extent that such LC Exposure participation in all Letter of Credit Usage is reallocated backstopped, cash collateralized and/or Cash Collateralized; andreallocated
2.11.4 so (e) So long as such any Lender is a Defaulting Lender, no Swingline Issuing Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, 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 cash collateral or backstop letters of credit will be provided by Borrower in accordance with Section 2.2.10subsection (d) of this Section, and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders that are Lenders in a manner consistent with subsection (d)(i) of this Section 2.2.7 (and such Defaulting Lender Lenders shall not participate therein). If .
(if) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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 Administrative Agent, Borrower, the Swingline Borrower and Issuing Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure Letter of Credit Usage of the Lenders shall be readjusted to reflect the inclusion of such formerly Defaulting Lender’s Revolving Commitment and on such date such formerly Defaulting Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such formerly Defaulting Lender to hold such Revolving Loans in accordance with its Proportionate ShareRevolving Percentage.
Appears in 3 contracts
Samples: Credit Agreement, Credit Agreement (NBCUniversal Media, LLC), Credit Agreement (Comcast Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility (a) Commitment Fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder4.1(a);
2.11.2 (b) The Commitment, the Commitment Revolving Exposure and Revolving Credit the Term Loan Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Revolving Lenders, the Majority Term Loan Lenders, the Required Revolving Lenders or Borrowing Base Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.914.1), except ; provided that (i) the Commitment(s) of any Defaulting Lender may not be increased waiver, amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent modification requiring the consent of all Lenders pursuant to Section 14.1 (other than Section 14.1(b)(x) or requiring the Lenders or consent of each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders pursuant to Section 14.1(b)(i) or (ix) or, shall require the consent of such Defaulting Lender (which for the avoidance of doubt would include any change to the Maturity Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default interest rates) and any increase in such Defaulting Lender’s Commitment) and (ii) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender;
2.11.3 if (c) If any Swingline Exposure or LC Letter of Credit Exposure exists at the time such a Revolving Lender becomes a Defaulting Lender then:
Lender, then (i) all or any part of the such Swingline Exposure and LC Letter of Credit Exposure of such Defaulting Lender shall will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Revolving Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders pro rata in accordance with their respective Proportionate Shares but only Revolving Commitment Percentages; provided that (A) each Non-Defaulting Lender’s Revolving Exposure may not in any event exceed the Revolving Commitment Percentage of the Revolving Loan Limit of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuers or any other Revolving Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the sum “unreallocated portion”) of all non-Defaulting Lenders’ Revolving Credit Exposures plus such the Defaulting Lender’s Swingline Exposure and LC or Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effectedso reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.15(c)(i) or otherwise, the Borrower shall within one Banking Day two Business Days following notice by the Administrative Agent or the applicable Letter of Credit Issuer (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks applicable Letter of Credit Issuer’ only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) ), in accordance with the procedures set forth in Section 2.2.10 3.8 for so long as such LC Letter of Credit Exposure is outstanding;
, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to clause (ii) aboveSection 2.15(c), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 4.1(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure during the period such Defaulting Lender’s LC Letter of Credit Exposure is Cash Collateralized;
, (iv) if the LC Letter of Credit Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.15(c), then the Letter of Credit fees Fees payable to for the account of the Revolving Lenders pursuant to Section 2.4.2 4.1(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate Shares; and
Revolving Commitment Percentages and the Borrower shall not be required to pay any Swingline or Letter of Credit Fees to the Defaulting Lender pursuant to Section 4.1(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (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 2.15(c), then, without prejudice to any rights or remedies of any LC Issuing Bank the Letter of Credit Issuer or any Revolving Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit fees Fees payable under Section 2.4.2 4.1(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the relevant LC Issuing Bank Letter of Credit Issuer until and to the extent that such LC Letter of Credit Exposure is reallocated Cash Collateralized and/or Cash Collateralized; andreallocated;
2.11.4 so (d) So long as such any Revolving Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall Letter of Credit Issuer will be required to issue, amend or increase issue any new Letter of CreditCredit or amend any outstanding Letter of Credit to increase the Stated Amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless such Swingline Lender or LC Issuing Bank, as the case may be, Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the related exposure and the to such Defaulting Lender’s then outstanding LC Exposure will be 100% Lender is eliminated or fully covered by the Commitments of the nonNon-Defaulting Lenders and/or or by Cash Collateral will be provided by Borrower Collateralization or a combination thereof in accordance with Section 2.2.10clause (c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer, and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.2.7 2.15(c) (and such Defaulting Lender Lenders shall not participate therein). ; and
(e) If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender isBorrower, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees Letter of Credit Issuer agree in writing in their discretion that a Revolving Lender that is a Defaulting Lender has adequately remedied all matters that caused such Lender should no longer be deemed to be a Defaulting Lender, then the Swingline Exposure Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and LC subject to any conditions set forth therein, such Revolving Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Letter of Credit Exposure of the Lenders such Revolving Lender reallocated pursuant to Section 2.15(c) shall be readjusted reallocated back to reflect such Revolving Lender; provided that, except to the inclusion extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s Commitment having been a Defaulting Lender.
(f) 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 XII or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 14.8), 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 each Letter of Credit Issuer and the Swingline Lenders 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 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 Borrower, 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; fifth, to the payment of any amounts owing to the Lenders, the Letter of Credit Issuers or the Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such date Letter of Credit Issuer or the Swingline Lenders against that Defaulting Lender as a result of that 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 that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and seventh, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such Lender shall purchase at par such payment is a payment of the principal amount of any Loans of or Unpaid Drawings, such payment shall be applied solely to pay the relevant Loans of, and Unpaid Drawings owed to, the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section 2.15(f). Any payments, prepayments or other Lenders amounts paid or payable to a Defaulting Lender that are applied (other than Swingline Loansor held) as Administrative Agent to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to Section 3.8 shall determine may be necessary in order for such deemed paid to and redirected by that Defaulting Lender, and each Lender to hold such Loans in accordance with its Proportionate Shareirrevocably consents hereto.
Appears in 3 contracts
Samples: Credit Agreement (California Resources Corp), Credit Agreement (California Resources Corp), Credit Agreement (California Resources Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) The Commitment Fee shall cease to accrue on any of the Commitment Revolving Credit Commitments of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.09(a);
2.11.2 (b) the Commitment Commitment, Outstanding Amount of Term Loans and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.910.01); provided that any waiver, except that (i) the Commitment(s) of any Defaulting Lender may not be increased amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely than disproportionately when compared to the other affected Lenders Lenders, or increases or extends the Commitment of such Defaulting Lender, shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure Swing Line Obligations or LC Exposure exists L/C Obligations exist at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure Swing Line Obligations or L/C Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Pro Rata Shares but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure Swing Line Obligations and LC Exposure L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower the Borrowers shall within one Banking Day three (3) Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure Swing Line Obligations and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks L/C Issuer only Borrower’s the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.03(f) for so long as such LC Exposure is L/C Obligations are outstanding;
(iii) if Borrower the Borrowers Cash Collateralizes Collateralize any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to clause (ii) above, Borrower the Borrowers shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.03(h) with respect to such Defaulting Lender’s LC Exposure L/C Obligations during the period such Defaulting Lender’s LC Exposure is L/C Obligations are Cash Collateralized;
(iv) if the LC Exposure L/C Obligations of the non-Defaulting Lenders is are reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 Sections 2.09(a) and 2.03(h) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate Pro Rata Shares; 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 LC Issuing Bank the L/C Issuer or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.03(h) with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to the relevant LC Issuing Bank L/C Issuer until and to the extent that such LC Exposure is L/C Obligations are reallocated and/or Cash Collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no Swingline the Swing Line Lender shall not be required to fund any Swingline Swing Line Loan and no LC Issuing Bank the L/C Issuer shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied it has received assurances satisfactory to it that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders will cover the related exposure and/or Cash Collateral cash collateral will be provided by Borrower the Borrowers in accordance with Section 2.2.102.16(c), and participating interests in any newly made Swingline Swing Line Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 2.16(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, Borrowerthe Borrowers, the Swingline Lenders Swing Line Lender and the LC Issuing Banks L/C Issuer each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure Swing Line Obligations and LC Exposure L/C Obligations of the Revolving Credit Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such date such Lender shall purchase at par such of the Revolving Credit Loans of the other Revolving Credit Lenders (other than Swingline Swing Line Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Credit Loans in accordance with its Proportionate Pro Rata Share.
Appears in 3 contracts
Samples: Credit Agreement (Acelity L.P. Inc.), Credit Agreement (Kinetic Concepts Inc), Credit Agreement (KCI Animal Health, LLC)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender, to the extent permitted by applicable law:
2.11.1 Facility Fees (a) (i) fees shall cease to accrue on the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount unfunded portion of the Revolving Loans funded by it Commitment of a Defaulting Lender, and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such no Defaulting Lender has provided Cash Collateral shall be entitled to receive any Revolving Commitment fees pursuant to Section 2.09(a) for any period during which that Lender is a Defaulting Lender (and the relevant Swingline Lender or LC Issuing Bank hereunderBorrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender);
2.11.2 (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.911.02), except ; provided that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased or extended, or in the maturity case of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any an amendment, waiver or consent other modification requiring the consent of all the Lenders each Lender or each Lender affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby;
2.11.3 (c) if any Swingline Exposure or LC Exposure Letter of Credit Usage exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure Letter of Credit Usage of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages but only to the extent that (x) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure Letter of Credit Usage does not exceed the total of all nonNon-Defaulting Lenders’ Revolving Commitments, and (y) the sum of any Non-Defaulting Lender’s Revolving Exposure plus its Pro Rata Share of such Defaulting Lender’s Letter of Credit Usage does not exceed such Non-Defaulting Lender’s Revolving Commitment; provided that each such no reallocation hereunder shall be given effect only if, at the date the applicable constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender becomes arising from that Lender having become a Defaulting Lender, no Inchoate Default or Event including any claim of Default existsa Non-Defaulting Lender as a result of such Non-Defaulting 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 Banking Business Day following notice by Administrative Agent (x) first, prepay such Swingline Exposure and (y) secondAgent, Cash Collateralize for the benefit of each applicable Issuing Bank only the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure 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 2.2.10 2.03(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 (iii) above, the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.09(a)(ii) with respect to such Defaulting Lender’s LC Exposure Letter of Credit Usage during the period such Defaulting Lender’s LC Exposure Letter of Credit Usage is Cash Collateralized;
(iv) if the LC Exposure all or any portion of the non-such Defaulting Lenders Lender’s Letter of Credit Usage is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.09(a)(i) and Section 2.09(a)(ii) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate SharesApplicable 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 LC Issuing Bank or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.09(a)(ii) with respect to such Defaulting Lender’s LC Exposure Letter of Credit Usage that is not so reallocated or Cash Collateralized shall be payable to the relevant LC applicable Issuing Bank until and to the extent that such LC Exposure Letter of Credit Usage is reallocated and/or Cash Collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure Letter of Credit Usage will be 100% covered by the Revolving Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral will be provided by the Borrower in accordance with Section 2.2.102.22(c)(ii), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.2.7 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a holding company of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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, no Swingline Lender shall be required to fund any Swingline Loan and no LC the applicable Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower or such Lender, reasonably satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Borrower, the Swingline Lenders Borrower and each of the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure Letter of Credit Usage of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage.
Appears in 3 contracts
Samples: Revolving Credit and Guaranty Agreement (Compass, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Slack Technologies, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder)2.14;
2.11.2 (b) the Commitment and Revolving the Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.910.02); provided, except that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased in the case of an amendment, waiver or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without other modification requiring the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each Lender affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender and no Default or Event of Default has occurred and is continuing then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures aggregate LC Exposure plus the aggregate amount of all non-Defaulting Lenders’ outstanding Loans plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower shall within one Banking Day following notice by Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure that has not been reallocated pursuant to clause (iii) above, Borrower the Company shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.14 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iviii) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.14 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable Percentages; and
(viv) 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 LC the Issuing Bank Lender or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 2.14 with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank Administrative Agent until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no Swingline Issuing Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by Borrower the Company in accordance with Section 2.2.10clause (c) above, and participating interests in any 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 2.2.7 clause (c)(i) above (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, Borrower, the Swingline Lenders Company and the LC each Issuing Banks Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and aggregate LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareCommitment.
Appears in 3 contracts
Samples: Credit Agreement (Xl Group PLC), Credit Agreement (Xl Group PLC), Credit Agreement (Xl Group PLC)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees shall cease to accrue on the Commitment of such (i) no Defaulting Lender shall be entitled to receive any commitment fee pursuant to Section 2.4.1 2.12(a) for any period during which that Lender is a Defaulting Lender (except and the Borrowers shall not be required to the extent allocable pay at any time any such fee that otherwise would have been required to (i) the outstanding principal amount of the Revolving Loans funded by it and have been paid to that Defaulting Lender);
(ii) its outstanding Swingline the Commitments, Term Loan Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Required Facility Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.910.02); provided, except that (iy) the Commitment(s) of any such Defaulting Lender Lender’s Commitments may not be increased or extendedextended without its consent and (z) the principal amount of, or the maturity of any of its interest or fees payable on, Loans may not be extended, the rate of interest on any of its Loans or LC Disbursements may not be reduced and or excused or the principal amount scheduled date of any of its Loans payment may not be forgiven, in each case without the consent of postponed as to such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of without such Defaulting Lender’s consent;
2.11.3 (iii) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(iA) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders that are Revolving Lenders in accordance with their respective Proportionate Shares Revolving Percentages (calculated without regard to such Defaulting Lender’s Revolving Commitment) but only to the extent that (x) the sum of all such non-Defaulting 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; provided that each Revolving Commitments and (y) the conditions set forth in Section 4.02(a) and (b) are satisfied at such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default existstime;
(iiB) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower the Revolving Borrowers shall within one Banking Business Day following notice by the Administrative Agent Agent, without prejudice to any right or remedy available to them hereunder or under law, (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Bank only Borrower’s the Revolving Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.06(j) for so long as such LC Exposure is outstanding;
(iiiC) if a Revolving Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, such Revolving Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.12(c) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(ivD) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.12(a) and Section 2.12(c) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesRevolving Percentages; and
(vE) 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 LC the Issuing Bank or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; andcash collateralized.
2.11.4 (iv) so long as such Revolving Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, 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 cash collateral will be provided by Borrower the Revolving Borrowers in accordance with Section 2.2.102.20(a)(iii), and participating interests in any 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 2.2.7 2.20(a)(iii)(C) (and such Defaulting Lender shall not participate therein). If .
(ib) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, Borrowerthe Revolving Borrowers, the Swingline Lenders Lender and the LC Issuing Banks Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareRevolving Percentage.
(c) Any 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 10.08 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 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 Swingline Lender hereunder; third, to cash collateralize the Issuing Banks’ LC Exposure with respect to such Defaulting Lender; 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 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 (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) 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; sixth, to the payment of any amounts owing to the Lenders, the Issuing Bank or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Banks or Swingline Lenders 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 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 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 Loans or LC 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 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, such Defaulting Lender until such time as all Loans and funded and unfunded participations in obligations under any issued Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the commitments under the applicable Facility without giving effect to Section 2.20(a)(iii). 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 2.20(c) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 3 contracts
Samples: Revolving Credit and Term Loan Agreement, Revolving Credit and Term Loan Agreement (Cooper Companies, Inc.), Revolving Credit and Term Loan Agreement (Cooper Companies Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Credit Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.13(a);
2.11.2 (b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.99.02); provided, except that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased or extended, or in the maturity case of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any an amendment, waiver or consent other modification requiring the consent of all the Lenders or each Lender affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) so long as no Event of Default shall have occurred and be continuing, all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders that are Revolving Credit Lenders in accordance with their respective Proportionate Shares Applicable Revolving Percentages but only to the extent (x) the sum of all non-Defaulting 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; provided that each such reallocation shall be given effect only if, at Revolving Credit Commitments and (y) the date the applicable Lender becomes a sum of any non-Defaulting Lender, no Inchoate Default or Event ’s Revolving Credit Exposure plus its Applicable Revolving Percentage of Default existssuch Defaulting Lenders’ Swingline Exposure and LC Exposure does not exceed such non-Defaulting Lender’s Revolving Credit Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.05(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 any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.13(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.13(a) and (b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable Revolving 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 LC the Issuing Bank Banks or any other Revolving Credit Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 2.13(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.102.21(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders that are Revolving Credit Lenders in a manner consistent with Section 2.2.7 2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to a Lender Parent of any Person as to which any Revolving Credit Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any the Swingline Lender Lenders or any LC the applicable Issuing Bank has a good faith belief that any Revolving Credit Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, no the Swingline Lender Lenders shall not be required to fund any Swingline Loan and no LC such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s the Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender Lenders or such LC Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to such the Swingline Lender Lenders or such LC 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, the Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Revolving Credit Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Revolving Credit Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Revolving Credit Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its Proportionate ShareApplicable Revolving Percentage.
Appears in 3 contracts
Samples: Credit Agreement (Huntington Ingalls Industries, Inc.), Credit Agreement (Huntington Ingalls Industries, Inc.), Credit Agreement (Huntington Ingalls Industries, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the Commitment unfunded portion of the Commitments of such Defaulting Lender pursuant to Section 2.4.1 2.12(a);
(except to the extent allocable to (ib) the outstanding aggregate principal amount of the Loans, Revolving Loans funded by it L/C Exposures, Swingline Exposures and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Available Unused Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the all Lenders, Required Lenders, Majority Lenders or affected Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.99.08), except ; provided that (i) the Commitment(s) of any Defaulting Lender may not be increased waiver, amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other affected Lenders shall require the consent of such Defaulting Lender, (ii) the Commitment of such Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender and (iii) any amendment that reduces the principal amount of, rate of interest on, or the final maturity of, any Loan made by such Defaulting Lender, shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC Revolving L/C Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC or Revolving L/C Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Revolving Facility Percentages but only to the extent such reallocation does not cause the sum aggregate Revolving Facility Credit Exposure of all any non-Defaulting Lenders’ Revolving Credit Exposures plus Lender to exceed such non-Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsRevolving Facility Commitment; provided that, subject to Section 9.24, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that each such reallocation shall be given effect only if, at the date the applicable Lender becomes having become a Defaulting Lender, no Inchoate Default or Event including any claim of Default existsa Non-Defaulting Lender as a result of such Non-Defaulting 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 Banking Day five Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Revolving L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.05(j) for so long as such LC Revolving L/C Exposure is outstanding;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Revolving L/C Exposure pursuant to clause (ii) aboveSection 2.22(c)(ii)(y), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.12 with respect to such Defaulting Lender’s LC Revolving L/C Exposure during the period such Defaulting Lender’s LC Revolving L/C Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Swingline Exposure or Revolving L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.22(c)(i), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.12 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesRevolving Facility Percentage; and
(v) if all or any portion of such Defaulting Lender’s LC Revolving L/C Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (iSection 2.22(c)(i) or (ii) above), then, without prejudice to any rights or remedies of any LC the Issuing Bank or any Lender hereunder, all Facility Fees facility fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Revolving L/C Commitment that was utilized by such LC Revolving L/C Exposure) and Letter of Credit fees all Revolving L/C Participation Fees payable under Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Revolving L/C Exposure shall be payable to the relevant LC applicable Issuing Bank until such Revolving L/C exposure is cash collateralized and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and/ or reallocated;
2.11.4 (d) so long as such any Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Revolving Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Facility Commitments of the non-Defaulting Lenders and/or Cash Collateral or cash collateral will be provided by the Borrower in accordance with Section 2.2.102.22(c), and participating interests in any such newly issued or increased Revolving Letter of Credit or 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 2.2.7 2.22(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(e) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender shall be applied at such time or times as may be determined by the Administrative Agent as follows: (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, to the payment on a bankruptcy event (as pro rata basis of any amounts owing by such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect Lender to any Person Issuing Bank or Swingline Lender, (iii) third, as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for Borrower may request (so long as such event shall continue 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, (iiiv) any Swingline Lender fourth, if so determined by the Administrative Agent or any LC requested by an Issuing Bank has a good faith belief that or Swingline Lender, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Lender has defaulted existing or future participating interest in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Revolving Letter of Credit, unless Borrower shall have Cash Collateralized (v) fifth, 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 Swingline Exposure breach of its obligations under this Agreement, (vi) sixth, so long as no Default or LC ExposureEvent 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 case may beBorrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement and (vii) seventh, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, provided, with respect to this clause (vii), that if such payment is (x) a prepayment of the principal amount of any Loans in respect of which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 2.11 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. 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 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, 2.05(j) shall have entered into arrangements with Borrower or such be deemed paid to and redirected by that Defaulting Lender, satisfactory to such Swingline and each Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. irrevocably consents hereto.
(f) In the event that the Administrative Agent, the Borrower, the each Issuing Bank and each Swingline Lenders and the LC Issuing Banks Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Revolving L/C Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Facility Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareRevolving Facility Percentage.
Appears in 3 contracts
Samples: Credit Agreement (Crestwood Equity Partners LP), Credit Agreement (Crestwood Midstream Partners LP), Amendment (Crestwood Equity Partners LP)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Revolving Loan Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.5(a);
2.11.2 (b) the Revolving Loan Commitment, Outstanding Revolving Credit Exposure, Term Loan Commitment and Revolving Credit Exposure outstanding Term Loans of such Defaulting Lender shall not be included in determining whether the Required Revolving Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.98.2); provided, except that (i) the Commitment(s) of any such Defaulting Lender Lender’s Revolving Loan Commitment or Term Loan Commitment may not be increased or extendedextended without its consent and (ii) the principal amount of, or the maturity of any of its interest or fees payable on, Loans may not be extended, the rate of interest on any of its Loans or Reimbursement Obligations may not be reduced and or excused or the principal amount scheduled date of any of its Loans payment may not be forgiven, in each case without the consent of postponed as to such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of without such Defaulting Lender’s consent;
2.11.3 (c) if any Swingline Swing Line Exposure or LC Exposure exists Obligations exist at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Swing Line Exposure and LC Exposure Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Revolving Loan Pro Rata Shares but only to the extent the sum of all non-Defaulting Lenders’ Outstanding Revolving Credit Exposures plus such Defaulting Lender’s Swingline Swing Line Exposure and LC Exposure Obligations does not exceed the total of all non-Defaulting Lenders’ Revolving Loan Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower the Company shall within one Banking (1) Business Day following notice by Administrative the Agent (x) first, prepay such Swingline Swing Line Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Issuer only Borrowerthe Company’s obligations corresponding to such Defaulting Lender’s LC Exposure Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 8.1 for so long as such LC Exposure is Obligations are outstanding;
(iii) if Borrower Cash Collateralizes the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure Obligations pursuant to clause (ii) above, Borrower the Company shall not be required to pay any Letter letter of Credit credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.19.4 with respect to such Defaulting Lender’s LC Exposure Obligations during the period such Defaulting Lender’s LC Exposure is Cash CollateralizedObligations are cash collateralized;
(iv) if the LC Exposure Obligations of the non-Defaulting Lenders is are reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.5(a) and Section 2.19.4 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate Revolving Loan Pro Rata Shares; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure Obligations 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 the LC Issuing Bank Issuer or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.19.4 with respect to such Defaulting Lender’s LC Exposure Obligations shall be payable to the relevant LC Issuing Bank Issuer until and to the extent that such LC Exposure is Obligations are reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no Swingline the Swing Line Lender shall not be required to fund any Swingline Swing Line Loan and no the LC Issuing Bank Issuer shall not be required to issue, amend issue or increase Modify any Letter of CreditFacility LC, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure Obligations will be 100% covered by the Revolving Loan Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by Borrower the Company in accordance with Section 2.2.102.21(c), and participating interests in any newly made Swingline Swing Line Loan or any newly issued or increased Letter of Credit Facility LC shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a Parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline the Swing Line Lender or any the LC Issuing Bank Issuer 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 Swingline the Swing Line Lender shall not be required to fund any Swingline Swing Line Loan and no the LC Issuing Bank Issuer shall not be required to issue, amend issue or increase Modify any Letter of CreditFacility LC, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Swing Line Lender or such the LC Issuing BankIssuer, as the case may be, shall have entered into arrangements with Borrower the Company or such Lender, satisfactory to such Swingline the Swing Line Lender or such the LC Issuing BankIssuer, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative the Agent, Borrowerthe Company, the Swingline Lenders LC Issuer and the LC Issuing Banks Swing Line Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Swing Line Exposure and LC Exposure Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Loan Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as Administrative the Agent shall determine may be necessary in order for such Lender to hold such Loans in each Agreed Currency of each Borrower in accordance with its Proportionate Revolving Loan Pro Rata Share. Nothing contained in the foregoing shall be deemed to constitute a waiver by any Borrower of any of its rights or remedies (whether in equity or law) against any Lender which fails to fund any of its Loans hereunder at the time or in the amount required to be funded under the terms of this Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if one or more Lenders become Defaulting Lenders, then, upon notice to such effect by the Designated Agent (which notice shall be given promptly after the Designated Agent becomes aware that any Lender becomes shall have become a Defaulting Lender, then including as a result of being advised thereof by the Borrower) (such notice being referred to as a “Defaulting Lender Notice”), the following provisions shall apply for so long as any such Lender is a Defaulting Lender:
2.11.1 Facility Fees (i) no commitment fee shall cease to accrue or at any time be payable for such period on the unused amount of the Commitment of such any Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and 2.03(a); and
(ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Commitment and Revolving Credit Exposure outstanding Advances of such each Defaulting Lender shall not be included disregarded in determining whether the Required requisite Lenders shall have taken or may take any action hereunder (including any consent to any amendmentwaiver, waiver amendment or other modification pursuant to Section 7.99.01); provided that any waiver, amendment or other modification that, disregarding the effect of this clause (ii), except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring requires the consent of all the Lenders or each of all Lenders affected Lender that by its terms thereby and which affects any such Defaulting Lender more adversely differently than other Lenders or affected Lenders, as the other affected Lenders case may be, shall require the consent of such Defaulting Lender;.
2.11.3 if (iii) If any Swingline Exposure or LC Exposure Letter of Credit Liability exists at the time such Lender becomes a Defaulting Lender then:
(iA) all or any part of the Swingline Exposure and LC Letter of Credit Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares LC Commitment Percentages, but only to the extent that the sum of all non(x) the Equivalent in Dollars of such Non-Defaulting Lenders’ Revolving Lender’s outstanding Advances and (y) such Non-Defaulting Lender’s Letter of Credit Exposures plus Exposure, as increased by its share of such Defaulting Lender’s Swingline Exposure and LC Exposure does Letter of Credit Exposure, would not exceed the total of all nonsuch Non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists’s Commitment;
(iiB) if the reallocation reallocations described in clause (iA) above cannot, or can only partially, be effected, the Borrower shall either (1) within one Banking Business Day following notice by Administrative the Designated Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance a manner reasonably satisfactory to the Designated Agent and each applicable Issuing Bank with the procedures set forth in Section 2.2.10 one or more outstanding Letters of Credit for so long as such LC Letter of Credit Exposure is outstandingoutstanding or (2) promptly (x) provide each applicable Issuing Bank a letter of credit or (y) enter into other arrangements as are reasonably satisfactory to the Borrower and each applicable Issuing Bank, in either case in order (after giving effect to any partial reallocation pursuant to clause (A) above) reasonably to mitigate each applicable Issuing Bank’s remaining risk with respect to the non-reallocated portion of such Defaulting Lender’s Letter of Credit Exposure;
(iiiC) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to clause (iiB) above, the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 3.05 with respect to such Defaulting Lender’s LC Letter of Credit Exposure during the period such Defaulting Lender’s LC Letter of Credit Exposure is Cash Collateralizedcash collateralized;
(ivD) if the LC Letter of Credit Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (iA) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.03 and Section 3.05 shall be adjusted in accordance with the amounts of such nonLetter of Credit Exposure allocated to the Non-Defaulting Lenders’ Proportionate Shares; and
(vE) if all or any portion of such Defaulting Lender’s LC Letter of Credit Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (iA) or (iiB) above, then, without prejudice to any rights or remedies of any LC the Issuing Bank Banks or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 3.05 with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the relevant LC applicable Issuing Bank Banks until and to the extent that such LC Letter of Credit Exposure is reallocated and/or Cash Collateralized; andcash collateralized.
2.11.4 (iv) so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend amend, extend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Letter of Credit Exposure will be 100% covered by entirely reallocated to the Commitments of the nonNon-Defaulting Lenders and/or Cash cash collateralized by the Borrower by a deposit of cash in Dollars in the LC Collateral will be provided by Borrower in accordance with Section 2.2.10Account or otherwise accommodated for pursuant to clause (iii)(B)(2) above, and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with this Section 2.2.7 2.21 (and such Defaulting Lender shall not participate therein). If .
(b) Any amount payable to a 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 2.16) shall, unless the Borrower otherwise agrees in writing in its sole discretion, in lieu of being distributed to such Defaulting Lender, be retained by the Designated 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 Designated Agent (i) a bankruptcy event (as first, to the payment of any amounts owing by such term is defined in clause (d) of Defaulting Lender to the definition of “Defaulting Lender”) with respect to any Person as to which any Lender isDesignated Agent hereunder, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) second, to the funding of any Swingline Lender Advance or any LC Issuing Bank reimbursement obligation in respect of Letters of Credit, in either case in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Designated Agent, (iii) third, if so determined by the Designated Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement, (iv) fourth, pro rata, to the payment of any amounts owing to the Borrower or the Lenders as a good faith belief that result of any judgment of a court of competent jurisdiction obtained by the Borrower or any Lender has defaulted in fulfilling against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under one or more other agreements in which this Agreement and (v) fifth, to such Lender commits to extend credit, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Defaulting Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect otherwise directed by a court of such Lender hereunder. competent jurisdiction.
(c) In the event that Administrative the Designated Agent, Borrower, the Swingline Lenders Borrower and the LC each Issuing Banks each agrees Bank agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) such Lender shall cease to be a Defaulting Lender for all purposes hereof and (ii) the Swingline Exposure and LC Exposure Letter of Credit Exposures of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date (iii) such Lender shall purchase at par such of the Loans Advances of the other Lenders (other than Swingline Loans) as Administrative the Designated Agent shall determine may be necessary in order for such Lender the Lenders to hold such Loans Advances ratably in accordance with their Commitments.
(d) No Commitment of any Lender or Issuing Bank shall be increased or otherwise affected and, except as otherwise expressly provided in this Section, performance by the Borrower of its Proportionate Shareobligations hereunder and under the other Loan Documents shall not be excused or otherwise modified, as a result of the operation of this Section. The rights and remedies against a Defaulting Lender under this Section are in addition to other rights and remedies that the Borrower, the Designated Agent, any Issuing Bank or any Non-Defaulting Lender may have against such Defaulting Lender.
Appears in 3 contracts
Samples: Credit Agreement (Walt Disney Co/), Credit Agreement (Walt Disney Co/), Credit Agreement (Walt Disney Co/)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder4.1(a);
2.11.2 (b) the Commitment of and the 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 (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.913.1), except ; provided that (i) any waiver, amendment or modification requiring the Commitment(s) consent of any all Lenders or each affected Lender which affects such Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent Commitment of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require may not be increased or extended without the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC Letter of Credit Exposure exists at the time such a Lender becomes a Defaulting Lender then:
Lender, then (i) all or any part of the Swingline Exposure and LC such Letter of Credit Exposure of such Defaulting Lender shall and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders pro rata in accordance with their respective Proportionate Shares but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed Commitment Percentage of the total applicable Class of all non-Defaulting Lenders’ Revolving Credit Commitments; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation shall and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, any Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be given effect only if, at the date the applicable Lender becomes a Non-Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if to the reallocation described in clause extent that all or any portion (ithe “unreallocated portion”) above of the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be effectedso reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within one Banking Day two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 2.2.10 3.8 for so long as such LC Letter of Credit Exposure is outstanding;
, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to clause (ii) abovethe requirements of this Section 2.16(c), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 4.1(c) with respect to such Defaulting Lender’s LC Letter of Credit Exposure during the period such Defaulting Lender’s LC Letter of Credit Exposure is Cash Collateralized;
, (iv) if the LC Letter of Credit Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) abovethe requirements of this Section 2.16(c), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 4.1(c) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate Shares; and
Revolving Credit Commitment Percentages of the applicable Class of Revolving Credit Commitments and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (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) abovethe requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of any LC Issuing Bank Letter of Credit Issuer or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 4.1(c) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the relevant LC Issuing Bank applicable Letter of Credit Issuer until and to the extent that such LC Letter of Credit Exposure is reallocated Cash Collateralized and/or Cash Collateralized; andreallocated;
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall (d) (i) the Letter of Credit Issuers will not be required to fund issue any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any new Letter of CreditCredit 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 Swingline Lender or LC Issuing Bank, as the case may be, Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the related exposure and the to such Defaulting Lender’s then outstanding LC Exposure will be 100% Lender is eliminated or fully covered by the Revolving Credit Commitments of the nonNon-Defaulting Lenders and/or or by Cash Collateral will be provided by Borrower Collateralization or a combination thereof in accordance with the requirements of Section 2.2.10, and participating interests 2.16(c) above or otherwise in any newly made Swingline Loan or any newly issued or increased a manner reasonably satisfactory to such Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Share.Issuer; and
Appears in 3 contracts
Samples: Credit Agreement (MultiPlan Corp), Credit Agreement (MultiPlan Corp), Credit Agreement (Snap One Holdings Corp.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility (a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.12(a);
2.11.2 (b) the Commitment and Commitment, Revolving Credit Exposure and/or Term Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or the applicable Majority Facility Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.99.02); provided, that, except that as otherwise provided in Section 9.02, this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased in the case of an amendment, waiver or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without other modification requiring the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each Lender directly affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders with Revolving Commitments in accordance with their respective Proportionate Shares Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting 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; provided that Revolving Commitments and (y) the sum of each such reallocation shall be given effect only if, at the date the applicable Lender becomes a non-Defaulting Lender, no Inchoate Default or Event ’s Revolving Credit Exposure plus the amount of Default existssuch Defaulting Lender’s Swingline Exposure and LC Exposure reallocated to such non-Defaulting Lender does not exceed such non-Defaulting Lender’s Revolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower the Borrowers shall within one Banking Day three (3) Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks only Borrower’s only, the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.06(j) for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower the Borrowers shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Revolving Lenders pursuant to Section 2.4.2 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable 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 LC the relevant Issuing Bank or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC such Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Revolving Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the relevant Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, 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 cash collateral will be provided by Borrower the Borrowers in accordance with Section 2.2.102.24(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 Revolving Commitments in a manner consistent with Section 2.2.7 2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to a Parent of any Person as to which any Revolving Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any the Swingline Lender or any LC Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its funding obligations under one or more other agreements in which such Revolving Lender commits to extend credit, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower the Company or such Revolving Lender, reasonably satisfactory to such the Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Revolving Lender hereunder. In the event that the Administrative Agent, Borrowerthe Company, the Swingline Lenders Lender and the LC each Issuing Banks Bank each agrees that a Defaulting Lender with a Revolving Commitment has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC 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 Loans in accordance with its Proportionate ShareApplicable Percentage.
Appears in 3 contracts
Samples: Credit Agreement (Capri Holdings LTD), Credit Agreement (Michael Kors Holdings LTD), Credit Agreement (Michael Kors Holdings LTD)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees shall cease to accrue on the Commitment of (a) such Defaulting Lender will not be entitled to any fees accruing during such period pursuant to Section 2.4.1 2.11(a) or 2.11(b) (except without prejudice to the rights of the Lenders other than Defaulting Lenders in respect of such fees and, to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding any LC Exposure or Swingline Exposure and/or LC Exposure for which is reallocated to Non-Defaulting Lenders as set forth in Section 2.22(d)(i), any such Defaulting Lender has provided Cash Collateral fees will be paid to the relevant Swingline Lender or LC Issuing Bank hereunderapplicable Non-Defaulting Lenders to the extent of such reallocation);
2.11.2 (b) such Lender will not, to the fullest extent permitted by applicable law, be entitled to vote in respect of amendments and waivers hereunder and the Commitment and Revolving Credit Exposure the outstanding Loans or other extensions of credit of such Defaulting Lender shall hereunder will not be included taken into account in determining whether the Required Lenders or all of the Lenders, as required, have taken approved any such amendment or may take waiver (and the definition of “Required Lenders” will automatically be deemed modified accordingly for the duration of such period); provided that any action hereunder (including any consent to any amendment, such amendment or waiver or other modification pursuant to Section 7.9), except that would (i) increase or extend the Commitment(sterm of the Commitment of such Defaulting Lender, (ii) extend the date fixed for the payment of principal or interest owing to such Defaulting Lender hereunder, (iii) reduce the principal amount of any obligation owing to such Defaulting Lender may not be increased Lender, (iv) reduce the amount of or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of owing to such Defaulting Lender and (ii) or of any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any fee payable to such Defaulting Lender more adversely than hereunder or (v) alter the other affected Lenders shall terms of this proviso, will continue to require the consent of such Defaulting Lender;
2.11.3 (c) the Borrower may irrevocably terminate the unused amount of the Commitment of such Defaulting Lender upon not less than three Business Days’ prior notice to the Administrative Agent (which will promptly notify the Lenders thereof). Such termination shall be effective, with respect to such Defaulting Lender’s then existing unused Commitments, on the date set forth in such notice and, with respect to any unused Commitment thereafter arising, on the later of the date set forth in such notice and the date on which such unused Commitment first arises (and no commitment fee will be payable in respect of such unused Commitment terminated on the date it arises). Upon termination of such Defaulting Lender’s unused Commitments under this Section 2.22(b), the Borrower shall pay or cause to be paid all accrued commitment fees payable to, and all other amounts owing to, such Defaulting Lender under this Agreement. Upon such payment, the obligations of such Defaulting Lender hereunder with respect to such terminated Commitments shall be released and discharged; provided, however, that such Defaulting Lender’s rights and obligations provided in Section 9.05 with respect to such terminated Commitments shall survive such release and discharge as to matters occurring prior to such date;
(d) if any Swingline LC Exposure or LC Swingline Exposure exists at the time a Lender is a Defaulting Lender:
(i) such LC Exposure or Swingline Exposure will automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender then:
(iLender) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders on a pro rata basis in accordance with their respective Proportionate Shares but only Commitments (without giving effect to the extent the sum Commitment of all non-Defaulting 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); provided that each (A) no Non-Defaulting Lender’s Credit Exposure may in any event exceed its Commitment as in effect at the time of such reallocation shall and (B) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim any Loan Party, the Administrative Agent, any Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be given effect only if, at the date the applicable Lender becomes a Non-Defaulting Lender, no Inchoate Default or Event of Default exists;; and
(ii) if to the reallocation described extent any portion (the “unreallocated portion”) of the Defaulting Lender’s LC Exposure or Swingline Exposure cannot be reallocated to Non-Defaulting Lenders, whether by reason of the proviso in clause (i) above cannotor otherwise, or can only partiallythe Borrower will, be effected, Borrower shall within one Banking Day following notice not later than three Business Days after demand therefor by the Administrative Agent (xat the direction of any Issuing Bank or the Swingline Lender), (A) firstCash Collateralize in full its obligations to the Issuing Banks in respect of the unreallocated portion of such LC Exposure, (B) prepay in full its obligations to the Swingline Lender in respect of the unreallocated portion of such Swingline Exposure or (C) make other arrangements reasonably satisfactory to the Administrative Agent and (y) second, Cash Collateralize for to the benefit of the LC Issuing Banks only Borrower’s obligations corresponding and the Swingline Lender in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 for so long as such LC Exposure is outstanding;; and
(iii) if Borrower Cash Collateralizes any to the extent the unreallocated portion of such Defaulting Lender’s any LC Exposure is Cash Collateralized pursuant to clause (ii) above, Borrower such Cash Collateral will be applied to reimburse the relevant Issuing Bank for the portion of any LC Disbursement to which such unreallocated portion relates and, to the extent the remaining portion of such LC Disbursement shall not be reimbursed by the Borrower in accordance with Section 2.05(f), the Non-Defaulting Lenders will be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.05(f) to fund participations therein in accordance 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 clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate Shares; and;
(ve) 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 LC Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10, and participating interests in any 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 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Loan, unless such Issuing Bank shall or the Swingline Lender is satisfied that any LC Exposure or Swingline Exposure that would result therefrom is fully covered or eliminated by any combination reasonably satisfactory to such Issuing Bank or the Swingline Lender, as applicable, of the arrangements set forth in clauses (d)(i) and (d)(ii) above;
(f) in furtherance of the foregoing, if any Lender becomes, and during the period it remains, a Defaulting Lender, the Swingline Lender is hereby authorized by the Borrower (which authorization is irrevocable and coupled with an interest) to give, in its discretion, through the Administrative Agent, Borrowing Requests pursuant to Section 2.03 in such amounts and in such times as may be required to issuerepay an outstanding Swingline Loan; and
(g) any amount paid by the Borrower for the account of such Defaulting Lender in its capacity as a Lender under this Agreement (whether on account of principal, amend interest, fees, indemnity payments or increase any Letter other amounts) will be applied to the payment of Credit, unless Borrower shall have Cash Collateralized all amounts then due and payable by such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise Defaulting Lender under this Agreement until such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory amounts are paid in full and then will be paid to such Swingline Defaulting Lender. The application of payments as described in the preceding sentence shall not result in a Default, and a Defaulting Lender may not charge any overdue or such LC Issuing Bank, as the case may be, to defease penalty interest on any risk amount owed to it in respect that is not paid as a result of such Lender hereunderapplication. In If the event that Borrower, the Administrative Agent, Borrower, each Issuing Bank and the Swingline Lenders and the LC Issuing Banks each agrees Lender agree in writing in their discretion that a Lender that is a Defaulting Lender has adequately remedied all matters that caused such Lender should no longer be deemed to be a Defaulting Lender, then the Swingline Exposure Administrative Agent will so notify the parties hereto, and LC Exposure as of the Lenders shall be readjusted effective date specified in such notice and subject to reflect the inclusion of such Lender’s Commitment and on such date any conditions set forth therein, such Lender shall will, to the extent applicable, purchase at par such portion of the outstanding Loans or participations in Letters of Credit and Swingline Loans of the other Lenders (or make such other than Swingline Loans) adjustments as the Administrative Agent shall may determine may to be necessary in order for such Lender to hold such Loans cause the Credit Exposure of the Lenders to be on a pro rata basis in accordance with its Proportionate Sharetheir respective Commitments, and such Lender will cease to be a Defaulting Lender and will become a Non-Defaulting Lender (and the Credit Exposure of each Lender will automatically be adjusted on a prospective basis to reflect the foregoing); 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 Lender was a Defaulting Lender; provided further that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender. The parties agree that this Section 2.22 does not violate any of the pro rata provisions of this Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Blackstone Inc.), Credit Agreement (Blackstone Group Inc), Credit Agreement (Blackstone Group L.P.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) facility fees shall cease to accrue on the unused portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder5.07(a);
2.11.2 (b) the 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 7.912.07); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extendedas otherwise provided in Section 12.07, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without require the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring in accordance with the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderhereof;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender Lender, then:
(i) all or any part of the Swingline Exposure 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 4.01(e) and 4.01(f)) of such Defaulting Lender shall be reallocated among the non-Lenders that are not Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages but only to the extent that (A) the sum of all non-Defaulting Lenders’ the Revolving Credit Exposures of all Lenders that are not Defaulting Lenders plus such Defaulting Lender’s Swingline Exposure and LC Exposure (other than any portion thereof referred to in the parenthetical clause above) does not exceed the total sum of all non-the Commitments of Lenders that are not Defaulting Lenders’ Commitments; provided that each Lenders and (B) such reallocation shall be given effect only if, at does not result in the date the applicable Revolving Credit Exposure of any Lender becomes that is not a Defaulting Lender exceeding such Lender, no Inchoate Default or Event of Default exists’s Commitment;
(ii) if the reallocation described in clause (iSection 5.15(c)(i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Business Day following notice by the Administrative Agent (xcash collateralize pursuant to Section 4.01(k) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC applicable Issuing Banks only Borrower’s obligations corresponding to Lenders the portion of such Defaulting Lender’s LC Exposure (after giving effect other than any portion thereof referred to any partial reallocation pursuant to clause (iin the parenthetical in such Section 5.15(c)(i)) above) in accordance with the procedures set forth in Section 2.2.10 that has not been reallocated 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) aboveSection 5.15(c)(ii), the Borrower shall not be required to pay any Letter of Credit participation fees to such Defaulting Lender pursuant to Section 2.4.2 5.07(c) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) aboveSection 5.15(c)(i), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 Sections 5.07(a) and 5.07(c) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Proportionate Sharesreallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to reallocation pursuant to Section 5.15(c)(i) is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (iSections 5.15(c)(i) or (ii) above5.15(c)(ii), then, without prejudice to any rights or remedies of any LC Issuing Bank Lender or any other Lender hereunder, all Facility Fees facility fees that otherwise would have been payable under Section 5.07(a) to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the such portion of such Defaulting Lender’s Commitment that was utilized by such its LC Exposure) Exposure and Letter of Credit all participation fees payable under Section 2.4.2 5.07(c) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant Issuing Lenders (and allocated among them ratably based on the amount of such portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit issued by each Issuing Bank Lender) until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 so long as such (d) no Issuing Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase extend any Letter of Credit, Credit unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the such Defaulting Lender’s then outstanding LC Exposure will be 100% fully covered by the Commitments of the non-Lenders that are not Defaulting Lenders and/or Cash Collateral will be provided cash collateralized by the Borrower in accordance with Section 2.2.105.15(c), and participating interests in any newly made Swingline Loan such issued, amended or any newly issued or increased extended Letter of Credit shall will be allocated among non-the Lenders that are not Defaulting Lenders in a manner consistent with Section 2.2.7 5.15(c)(i) (and such Defaulting Lender shall not participate therein). If In the event that (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which any a Lender is, directly or indirectly, Parent of a Subsidiary Lender shall occur following the date hereof and for so long as such event Bankruptcy Event shall continue or (ii) any Swingline Issuing Lender or any LC 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 Swingline such Issuing Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall not be required to issue, amend or increase extend any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Issuing Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, the applicable Lender satisfactory to such Swingline Issuing Lender or such LC 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, Borrower, the Swingline Lenders Borrower and the LC Issuing Banks each agrees Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such the applicable Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans and such funded participations in LC Disbursements of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans and such participations in accordance with its Proportionate ShareApplicable Percentage, and such Lender shall thereupon cease to be a Defaulting Lender (but shall not be entitled to receive any fees accrued during the period when it was a Defaulting Lender as set forth in this Section 5.15, and all amendments, waivers or other modifications effected without its consent in accordance with the provisions of Section 12.07 and this Section 5.15 during such period shall be binding on it). The rights and remedies against, and with respect to, a Defaulting Lender under this Section 5.15 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent, the Lenders, the Issuing Lenders and the Borrower may at any time have against, or with respect to, such Defaulting Lender.
Appears in 3 contracts
Samples: Five Year Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.), Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.), Revolving Credit Agreement (Zimmer Biomet Holdings, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.4.1 2.03;
(except b) subject to the extent allocable second proviso to (i) the outstanding principal amount of Section 12.05, the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Commitment and Revolving Credit Exposure Commitments of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Majority Lenders or the Majority Revolving Lenders, as applicable, have taken or may take any action hereunder under this Agreement (including any consent to any amendment or waiver pursuant to Section 12.05), provided that in the case of an amendment, waiver or other modification pursuant to Section 7.9), except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each Lender affected Lender that by its terms thereby which affects any such Defaulting Lender more disproportionately and adversely than the relative to other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC Exposure Letter of Credit Liability under any of the Revolving Commitments exists at the time such a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part such Defaulting Lender’s pro rata portion of Letter of Credit Liability based on such Lender’s share of the Swingline Exposure and LC Exposure of such Defaulting Lender relevant Revolving Commitments (“L/C Exposure”) shall be reallocated among the non-Defaulting Revolving Lenders in accordance with their respective Proportionate Shares shares thereof but only to the extent (x) the sum of all non-Defaulting Revolving Lenders’ Revolving Loans under such Revolving Commitments and their Letter of Credit Exposures Liabilities thereunder plus such Defaulting Lender’s Swingline L/C Exposure and LC Exposure under such Revolving Commitments does not exceed the total of all non-Defaulting Revolving Lenders’ Commitments; provided that each Revolving Commitments under such reallocation shall be given effect only if, Revolving Commitments and (y) the conditions set forth in Section 7.03 are satisfied at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default existssuch time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the relevant Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC each Issuing Banks only Bank such Borrower’s obligations corresponding to any such Defaulting Lender’s LC remaining L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 10.01 for so long as such LC L/C Exposure is outstanding;
(iii) if Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) aboveSection 2.10(c)(ii), no Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.08(7) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.10(c)(i), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 Sections 2.03 and 2.08(7) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable Percentages (after giving effect to such adjustment); andor
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (iSection 2.10(c)(i) or (ii) above), then, without prejudice to any rights or remedies of any LC Issuing Bank or any other Lender hereunderunder this Agreement, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.08(7) with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the relevant LC such Issuing Bank until and to the extent that such LC L/C Exposure is reallocated cash collateralized and/or Cash Collateralized; andreallocated;
2.11.4 (d) so long as such any Revolving Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Revolving Lender’s then outstanding LC L/C Exposure will be 100% covered by the Revolving Commitments of the relevant non-Defaulting Revolving Lenders and/or Cash Collateral cash collateral will be provided by the relevant Borrower in accordance with Section 2.2.102.10(c), and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit shall be allocated among such non-Defaulting Revolving Lenders in a manner consistent with Section 2.2.7 2.10(c)(i) (and such Defaulting Lender shall not participate therein). If ; and
(i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (iie) any Swingline payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or any LC 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 creditmandatory, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may beat maturity, pursuant to Section 2.11.3 10.01 or otherwise otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 12.19 shall be applied at such Swingline 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 or to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such LC Defaulting Lender to any Issuing BankBank hereunder; third, to cash collateralize the Issuing Banks’ fronting exposure with respect to such Defaulting Lender in accordance with Section 2.10(c)(ii); fourth, as the case Company may be, shall have entered into arrangements with Borrower request (so long as no Default or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may beEvent of Default exists), to defease the funding of any risk to it Loan in respect of which such Defaulting Lender hereunderhas 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 Company, to be held in a 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 the Issuing Banks’ future fronting exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement in accordance with Section 2.10(c)(ii); 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 the Issuing Banks 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 or Event of Default exists, 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 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 Loans or Reimbursement Obligations 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 7.03 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations are held by the Lenders pro rata in accordance with the Commitments under the applicable Facility without giving effect to Section 2.10(c)(i). 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 2.10(e) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. In the event that the Administrative Agent, Borrower, the Swingline Lenders Company and the LC each Issuing Banks each agrees Bank agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC L/C Exposure of the Revolving Lenders under the relevant Revolving Commitments shall be readjusted to reflect the inclusion of such Lender’s relevant Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of such other Revolving Lenders as the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Shareshare of the relevant Revolving Commitments.
(f) If any Lender becomes a Defaulting Lender, then the Company shall have the right, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, to require such Lender to assign and delegate, without recourse, all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Company shall have received the prior written consent of the Administrative Agent (and if a Revolving Commitment is being assigned, the Issuing Bank) which consent shall not be unreasonably withheld, to the extent such consent would have been required pursuant to Section 12.06(b) and (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in Letters of Credit, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts). A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.
Appears in 2 contracts
Samples: Credit Agreement (Iron Mountain Inc), Credit Agreement (Iron Mountain Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility (i) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and 3.05(a).
(ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to The Commitment, the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 Maximum Credit Amount and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Majority Lenders, the Required Lenders or the Super Majority Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.912.02); provided that any waiver, except that (i) the Commitment(s) of any Defaulting Lender may not be increased amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender;; and provided, further, that any redetermination or affirmation of the 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.
2.11.3 if (iii) If any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(iA) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares 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 (1) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all nonNon-Defaulting Lenders’ Commitments, and (2) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure plus its reallocated share of such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment; provided provided, that each no such reallocation shall will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank or any Lender may have against such Defaulting Lender or cause such Defaulting Lender to be given effect only if, at the date the applicable Lender becomes a Non-Defaulting Lender, no Inchoate Default or Event of Default exists;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, Borrower then the Borrower, without prejudice to any right or remedy available to it hereunder or under law, shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2.10 2.08(j) for so long as such LC Exposure is outstanding;
(iiiC) if the Borrower Cash Collateralizes 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 any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 3.05(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(ivD) if the LC Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (iA) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 3.05(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate SharesApplicable Percentages; and
(vE) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (iA) or (iiB) above, then, without prejudice to any rights or remedies of any LC the Issuing Bank or any Lender hereunder, all Facility Fees commitment fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter letter of Credit credit fees payable under Section 2.4.2 3.05(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10, and participating interests in any 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 2.2.7 (and such Defaulting Lender shall not participate therein)cash collateralized. If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a Lender Parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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, no Swingline Lender shall be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower the Issuing Bank shall have Cash Collateralized entered into arrangements with the Borrower, such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC the Non-Defaulting Lenders, satisfactory to the Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, Borrower, the Swingline Lenders Borrower and the LC Issuing Banks Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender and such Lender is no longer a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date date, if necessary, such Lender shall purchase at par such of the Loans and/or participations in Letters of Credit of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans and/or participations in Letters of Credit in accordance with its Proportionate ShareApplicable Percentage; provided, that no adjustments will be made retroactively with respect to fees accrued while such Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Parsley Energy, Inc.), Credit Agreement (Parsley Energy, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except 2.12(a)(i) and fees shall cease to accrue on the extent allocable to (i) the outstanding principal amount unfunded portion of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which Commitment of such Defaulting Lender has provided Cash Collateral pursuant to the relevant Swingline Lender or LC Issuing Bank hereunderSection 2.12(a)(ii), as applicable;
2.11.2 (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.99.2); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby except that (i) such Defaulting Lender’s Commitment may not be increased or extended without its consent and (ii) the Commitment(s) of any principal amount of, or interest or fees payable on, Loans or LC Disbursements owing to such Defaulting Lender may not be increased reduced or extended, excused or the maturity scheduled date of any of its Loans payment may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of postponed as to such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of without such Defaulting Lender’s consent;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages but only to the extent the sum of all non-Defaulting 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; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.6(j) for so long as such LC Exposure is outstandingoutstanding and the Borrower will be permitted to use proceeds of the Loans for such purposes;
(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 any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.12(a)(ii) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable 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 LC the Issuing Bank or any other Lender hereunder, all Facility Fees facility fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter letter of Credit credit fees payable under Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.102.20(c), and participating interests in any 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 2.2.7 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a Parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any the Swingline Lender or any LC 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, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to such the Swingline Lender or such LC 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, the Borrower, the Swingline Lenders Lender and the LC Issuing Banks Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Healthcare Trust of America, Inc.), Credit Agreement (Healthcare Trust of America, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder)2.4;
2.11.2 (b) the Commitment and Revolving Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Majority Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.911.14); provided, except that (i) the Commitment(s) of any such Defaulting Lender Lender’s Commitment may not be increased or extendedextended without its consent and (ii) the principal amount of, or the maturity of any of its interest or fees payable on, Loans may not be extended, the rate of interest on any of its Loans or L/C Obligations may not be reduced and or excused or the principal amount scheduled date of any of its Loans payment may not be forgiven, in each case without the consent of postponed as to such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of without such Defaulting Lender’s consent;
2.11.3 (c) for purposes of any requested borrowing where a Defaulting Lender fails to fund its percentage of such borrowing and the Administrative Agent funds the defaulted portion, the borrowing request shall automatically be deemed to be the amount requested plus the amount that was to be funded by the Defaulting Lender (grossed up for the Defaulting Lender’s share of such additional borrowing) so that the amount requested shall be allocated among the remaining Lenders, but only to the extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit plus such Defaulting Lender’s Swingline Participation Amount and Revolving Percentage of the L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments;
(d) if any Swingline Exposure Loans are outstanding or LC Exposure exists L/C Obligations exist at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of such Lender’s Swingline Participation Amount or Revolving Percentage of the Swingline Exposure and LC Exposure of such Defaulting Lender L/C Obligations shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Swingline Participation Amount or Revolving Percentage, as applicable, but only to the extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Exposures plus such Defaulting Lender’s Swingline Exposure Participation Amount and LC Exposure Revolving Percentage of the L/C Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks L/C Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure Revolving Percentage of the L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 9.1 for so long as such LC Exposure is L/C Obligations are outstanding;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure Revolving Percentage of the L/C Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 3.3 with respect to such Defaulting Lender’s LC Exposure Revolving Percentage of the L/C Obligations during the period such Defaulting Lender’s LC Exposure Revolving Percentage of the L/C Obligations is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure Revolving Percentage of the L/C Obligations of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 Sections 2.4 and 3.3 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesRevolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure Revolving Percentage of the L/C Obligations 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 LC the Issuing Bank L/C Lender or any other Lender hereunder, all Facility Commitment Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC ExposureRevolving Percentage of the L/C Obligations) and Letter all letter of Credit credit fees payable under Section 2.4.2 3.3 with respect to such Defaulting Lender’s LC Exposure Lender shall be payable to the relevant LC Issuing Bank L/C Lender until and to the extent that such LC Exposure Defaulting Lender’s Revolving Percentage of the L/C Obligations is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (e) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank L/C Lender shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure L/C Obligations will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.102.23(d), and participating interests in any 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 2.2.7 2.23(d)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a Parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any the Swingline Lender or any LC the Issuing Bank L/C Lender has a good faith belief definitive evidence that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend creditcredit (unless as a result of a good faith dispute), no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank L/C Lender shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC the Issuing BankL/C Lender, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to such the Swingline Lender or such LC the Issuing BankL/C Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder, unless the Commitments of the non-Defaulting Lenders are, at all times while any of the circumstances described in clause (i) or (ii) above are in existence, sufficient to cover the Swingline Loans or Letters of Credit. In the event that the Administrative Agent, the Borrower, the Swingline Lenders Lender and the LC Issuing Banks L/C Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure Commitment and LC Exposure L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareRevolving Percentage, and shall pay all costs resulting from its becoming a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Centurylink, Inc), Credit Agreement (Centurylink, Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) commitment fees shall cease to accrue on the unused portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.12(a);
2.11.2 (b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or all affected Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.99.02); provided that any waiver, except that (i) the Commitment(s) of any Defaulting Lender may not be increased amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure, LC Exposure, Protective Advance Exposure or LC and Overadvance Exposure exists at the time such Lender becomes a Defaulting Lender Lender, then:
(i) all or any part of the such Defaulting Lender’s Swingline Exposure and LC Exposure of (other than any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.05(c)), 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 Section 2.06(d)), 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(c)) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages, but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure, LC Exposure, Protective Advance Exposure and LC Overadvance Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower the Borrowers shall within one Banking Business Day following notice by the Administrative Agent Agent, without prejudice to any rights or remedies of the Borrowers against such Defaulting Lender, (xA) first, prepay the portion of such Swingline Defaulting Lender’s Overadvance Exposure and that has not been so reallocated, (yB) second, Cash Collateralize for prepay the benefit portion of such Defaulting Lender’s Protective Advance Exposure that has not been so reallocated, (C) third, prepay the LC Issuing Banks only Borrowerportion of such Defaulting Lender’s obligations corresponding to Swingline Exposure that has not been so reallocated and (D) fourth, cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been so reallocated in accordance with the procedures set forth in Section 2.2.10 2.06(j) for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower the Borrowers shall not be required to pay any Letter letter of Credit credit participation fees to such Defaulting Lender pursuant to Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s cash collateralized LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (ic)(i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.12(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Proportionate Sharesreallocation; andor
(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 (ic)(i) or (iic)(ii) above, then, without prejudice to any rights or remedies of any LC the applicable Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit participation fees payable under Section 2.4.2 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 Bank) until and to the extent that such LC Exposure is reallocated cash collateralized and/or Cash Collateralizedreallocated; and
2.11.4 so long as such Lender is a Defaulting Lender, no (d) the Swingline Lender shall not be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend amend, renew, extend or increase any Letter of Credit, in each case, unless such Swingline Lender or LC Issuing Bank, as the case may be, 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 cash collateral provided by Borrower the Borrowers in accordance with Section 2.2.10clause (c) of this Section, and participating interests in any such newly made Swingline Loan or any newly issued issued, amended, renewed, extended or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with clause (c)(i) of this Section 2.2.7 (and such Defaulting Lender Lenders shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event and on the date that each of the Administrative Agent, Borrowerthe Company, each Issuing Bank and the Swingline Lenders and the LC Issuing Banks each Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure, LC Exposure, Protective Advance Exposure and LC Overadvance Exposure of the other Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its Proportionate ShareApplicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Ascena Retail Group, Inc.), Amendment and Restatement Agreement (Ascena Retail Group, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility (a) Commitment Fees shall cease to accrue from and after the time such Lender becomes a Defaulting Lender on the unused portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 2.11(a);
(except to the extent allocable to (ib) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which if such Defaulting Lender has provided Cash Collateral is an Issuing Bank, fronting fees shall cease to accrue from and after the relevant Swingline time such Lender or becomes a Defaulting Lender on the LC Exposure attributable to Letters of Credit issued by such Issuing Bank hereunderpursuant to Section 2.11(b)(ii);
2.11.2 (c) the Commitment and Revolving Credit Exposure Exposure, if any, of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder under this Agreement (including any consent to any amendment, waiver or other modification pursuant to Section 7.910.02), except provided that any amendment, waiver or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders or that would (i) change the Commitment(s) percentage of any Defaulting Lender may not be increased Commitments or extendedof the aggregate unpaid principal amount of the Loans or LC Exposures, or the maturity number of Lenders, that shall be required for the Lenders or any of them to take any action hereunder, (ii) amend this Section 2.21 or Section 10.02 in a manner which affects such Defaulting Lender differently than other Lenders and is adverse to such Defaulting Lender, (iii) increase or extend the Commitment of such Defaulting Lender or subject such Defaulting Lender to any additional obligations (it being understood that any amendment, waiver or consent in respect of conditions precedent, covenants, Defaults or Events of Default shall not constitute an increase or extension of the Commitment of any Lender or an additional obligation of its any Lender), (iv) reduce the principal of the Loans may not be extendedmade by such Defaulting Lender or any LC Disbursements or (v) postpone the scheduled date for any payment of principal of, or interest on, the rate of interest on Loans made by such Defaulting Lender or any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgivenLC Disbursements, shall in each case without require the consent of such Defaulting Lender and (ii) any amendment, waiver or which consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any shall be deemed to have been given if such Defaulting Lender more adversely than the other affected Lenders shall require the fails to respond to a written request for such consent within 30 days after receipt of such Defaulting Lenderwritten request);
2.11.3 (d) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender or at any time such Lender remains a Defaulting Lender, then:
(i) (x) all or any part of the Swingline Exposure and such LC Exposure of such Defaulting Lender comprising Global Tranche LC Exposure shall be reallocated among the nonGlobal Tranche Lenders that are Non-Defaulting Lenders in accordance with their respective Proportionate Shares Adjusted Global Tranche Percentages but only to the extent (a) the sum of any such Non-Defaulting Lender’s Global Tranche Credit Exposure plus its Adjusted Global Tranche Percentage of such Defaulting Lender’s Global Tranche LC Exposure does not exceed such Non-Defaulting Lender’s Global Tranche Commitment and (b) the sum of all nonsuch Non-Defaulting Lenders’ Revolving Global Tranche Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Global Tranche LC Exposure does not exceed the total of all nonNon-Defaulting Lenders’ Commitments; provided Global Tranche Credit Commitments (it being understood that each such reallocation LC Exposure shall not be reallocated after the Commitments are terminated on the Maturity Date) and (y) all or any part of such LC Exposure comprising US/UK Tranche LC Exposure shall be given effect reallocated among the US/UK Tranche Lenders that are Non-Defaulting Lenders in accordance with their respective Adjusted US/UK Tranche Percentages but only if, at to the date extent (a) the applicable Lender becomes a sum of any such Non-Defaulting Lender, no Inchoate Default or Event ’s US/UK Tranche Credit Exposure plus its Adjusted US/UK Tranche Percentage of Default existssuch Defaulting Lender’s US/UK Tranche LC Exposure does not exceed such Non-Defaulting Lender’s US/UK Tranche Commitment and (b) the sum of all such Non-Defaulting Lenders’ US/UK Tranche Credit Exposures plus such Defaulting Lender’s US/UK Tranche LC Exposure does not exceed the total of all Non-Defaulting Lenders’ US/UK Tranche Credit Commitments (it being understood that such LC Exposure shall not be reallocated after the Commitments are terminated on the Maturity Date);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower the Borrowers shall within one Banking Day five Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.04(k) for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) abovethis Section 2.21(d), Borrower the Borrowers shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.11(b) with respect to such Defaulting Lender’s LC Exposure (and such fees shall cease to accrue with respect to such Defaulting Lender’s LC Exposure) during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) abovethis Section 2.21(d), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 Sections 2.11(a) and 2.11(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate SharesAdjusted Tranche Percentages; and
(v) 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) abovethis Section 2.21(d), then, without prejudice to any rights or remedies of any LC Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC applicable Issuing Bank Bank(s) until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; andreallocated;
2.11.4 (e) (f) so long as such any Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend renew extend or increase any Letter of Credit, Credit unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10that would result from such newly issued, and participating interests in any newly made Swingline Loan or any newly issued renewed, extended or increased Letter of Credit shall be has been or would be, at the time of such issuance, renewal, extension or increase, fully allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 2.21(d)(i) or otherwise such Swingline Lender or such LC Issuing Bank, as fully cash collateralized by the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory Borrowers pursuant to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Share.Section 2.21(d)(ii);
Appears in 2 contracts
Samples: Credit Agreement (Molson Coors Beverage Co), Credit Agreement (Molson Coors Beverage Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (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 2.4.1 the extent, and during the period in which, such Lender is a Defaulting Lender (except and the Borrower shall not be required to pay any such commitment fee that otherwise would have accrued and been required to have been paid to such Defaulting Lender to the extent allocable to (i) and during the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for period in which such Lender is a Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunderLender);
2.11.2 (b) the 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 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 7.99.02, except for any amendment or waiver described in Section 9.02(b)(i), except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii), (iii) or (iv)); provided that any amendmentwaiver, waiver amendment or consent modification requiring the consent of all Lenders, two-thirds of the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other Lenders or affected Lenders (as applicable) shall require the consent of such Defaulting Lender;.
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and such LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages but only to the extent (x) the sum of all non-Defaulting 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; provided that each , (y) no non-Defaulting Lender’s Credit Exposure will exceed such reallocation Lender’s Commitment, and (z) the conditions set forth in Section 4.02 are satisfied at such time (and unless the Borrower has notified the Administrative Agent at such time, the Borrower shall be given effect only if, deemed to have represented and warranted that such conditions are satisfied at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default existssuch 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 Banking Day three Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) secondAgent, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.04(k) 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 any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.10(b) 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 clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.10(a) and Section 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate Shares; andApplicable 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 2.17(c), then, without prejudice to any rights or remedies of any LC the Issuing Bank or any Lender hereunder, all Facility Fees facility fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter letter of Credit credit fees payable under Section 2.4.2 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated Cash Collateralized and/or Cash Collateralizedreallocated; and
2.11.4 (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 Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.
(d) so long as such any Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the Borrower in accordance with Section 2.2.102.17(c), and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 2.17(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, Borrower, the Swingline Lenders Borrower and the LC Issuing Banks Bank each agrees in writing that a Defaulting Lender has adequately remedied all matters that caused 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 of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such the portion of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage in effect immediately after giving effect to such agreement.
Appears in 2 contracts
Samples: Senior Secured Revolving Credit Agreement (Oaktree Specialty Lending Corp), Senior Secured Revolving Credit Agreement (Oaktree Specialty Lending Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the daily unused amount of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.12(a);
2.11.2 (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.99.02), except ; provided that (i) any waiver, amendment or modification requiring the Commitment(s) consent of any all Lenders or each affected Lender which affects such Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) any amendmentamendment or modification that increases, waiver or consent requiring extends the consent of all the Lenders or each affected Lender that by its terms affects any maturity of, such Defaulting Lender more adversely than the other affected Lenders Lender’s Commitment shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) so long as no Default has occurred and is continuing: all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.06(j) 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 any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable 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 LC the Issuing Bank or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such any Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, 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 cash collateral will be provided by the Borrower in accordance with Section 2.2.102.21(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 2.2.7 2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a Parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any the Swingline Lender or any LC 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 the Swingline Lender shall not be required to fund any Swingline Loan and no LC not Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC the relevant Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to such the Swingline Lender or such LC the relevant 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, the Borrower, each Issuing Bank and the Swingline Lenders and the LC Issuing Banks Lender each agrees agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Inergy Midstream, L.P.), Credit Agreement (Inergy Midstream, L.P.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the Commitment unfunded portion of the Commitments of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.12(a);
2.11.2 (b) the Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or a Majority in Interest of any Class of Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.99.02); provided, that, except that as otherwise provided in Section 9.02, this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased in the case of an amendment, waiver or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without other modification requiring the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each Lender directly affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) so long as no Event of Default has occurred and is continuing, (x) all or any part of the Swingline Exposure and Dollar Tranche LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders that are Dollar Tranche Lenders (the “Non-Defaulting Dollar Tranche Lenders”) in accordance with their respective Proportionate Shares Dollar Tranche Percentages but only to the extent (A) that the sum of all Non-Defaulting Dollar Tranche Lenders’ Dollar Tranche Revolving Credit Exposures plus such Defaulting Lender’s Dollar Tranche LC Exposure does not exceed the total of all Non-Defaulting Dollar Tranche Lenders’ Dollar Tranche Commitments and (B) each Non-Defaulting Dollar Tranche Lender’s Dollar Tranche Revolving Credit Exposure does not exceed such Non-Defaulting Dollar Tranche Lender’s Dollar Tranche Commitment and (y) all or any part of the Swingline Exposure and Multicurrency Tranche LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders that are Multicurrency Tranche Lenders (the “Non-Defaulting Multicurrency Tranche Lenders”) in accordance with their respective Multicurrency Tranche Percentages but only to the extent (A) that the sum of all Non-Defaulting Multicurrency Tranche Lenders’ Multicurrency Tranche Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Multicurrency Tranche LC Exposure does not exceed the total of all nonNon-Defaulting Multicurrency Tranche Lenders’ Commitments; provided that Multicurrency Tranche Commitments and (B) each Non-Defaulting Multicurrency Tranche Lender’s Multicurrency Tranche Revolving Credit Exposure does not exceed such reallocation shall be given effect only if, at the date the applicable Lender becomes a Non-Defaulting Multicurrency Tranche Lender, no Inchoate Default or Event of Default exists’s Multicurrency Tranche Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Day two (2) Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.06(j) 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 any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable 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 LC the Issuing Bank or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.102.22(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 2.2.7 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which any a Lender is, directly or indirectly, a Subsidiary Parent shall occur following the date hereof and for so long as such event shall continue or (ii) any the Swingline Lender or any LC 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, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to such the Swingline Lender or such LC 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, the Borrower, the Swingline Lenders Lender and the LC Issuing Banks Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitments and on such date such Lender shall purchase at par such of the Dollar Tranche Revolving Loans of the other Lenders (other than Swingline Loans) and/or Multicurrency Tranche Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage, any cash collateral provided by the Borrower pursuant to Section 2.22(c)(ii) shall be immediately returned to the Borrower and thereupon such Lender shall cease to be a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (On Semiconductor Corp), Credit Agreement (On Semiconductor Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility (a) Commitment Fees shall cease to accrue from and after the time such Lender becomes a Defaulting Lender on the unused portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 2.11(a);
(except to the extent allocable to (ib) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which if such Defaulting Lender has provided Cash Collateral is an Issuing Bank, fronting fees shall cease to accrue from and after the relevant Swingline time such Lender or becomes a Defaulting Lender on the LC Exposure attributable to Letters of Credit issued by such Issuing Bank hereunderpursuant to Section 2.11(b)(ii);
2.11.2 (c) the Commitment and Revolving Credit Exposure Exposure, if any, of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder under this Agreement (including any consent to any amendment, waiver or other modification pursuant to Section 7.910.02), except provided that any amendment, waiver or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders or that would (i) change the Commitment(s) percentage of any Defaulting Lender may not be increased Commitments or extendedof the aggregate unpaid principal amount of the Loans or LC Exposures, or the maturity number of Lenders, that shall be required for the Lenders or any of them to take any action hereunder, (ii) amend this Section 2.21 or Section 10.02 in a manner which affects such Defaulting Lender differently than other Lenders and is adverse to such Defaulting Lender, (iii) increase or extend the Commitment of such Defaulting Lender or subject such Defaulting Lender to any additional obligations (it being understood that any amendment, waiver or consent in respect of conditions precedent, covenants, Defaults or Events of Default shall not constitute an increase or extension of the Commitment of any Lender or an additional obligation of its any Lender), (iv) reduce the principal of the Loans may not be extendedmade by such Defaulting Lender or any LC Disbursements or (v) postpone the scheduled date for any payment of principal of, or interest on, the rate of interest on Loans made by such Defaulting Lender or any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgivenLC Disbursements, shall in each case without require the consent of such Defaulting Lender and (ii) any amendment, waiver or which consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any shall be deemed to have been given if such Defaulting Lender more adversely than the other affected Lenders shall require the fails to respond to a written request for such consent within 30 days after receipt of such Defaulting Lenderwritten request);
2.11.3 (d) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender or at any time such Lender remains a Defaulting Lender, then:
(i) (x) all or any part of the Swingline Exposure and such LC Exposure of such Defaulting Lender comprising Global Tranche LC Exposure shall be reallocated among the nonGlobal Tranche Lenders that are Non-Defaulting Lenders in accordance with their respective Proportionate Shares Adjusted Global Tranche Percentages but only to the extent (a) the sum of any such Non-Defaulting Lender’s Global Tranche Credit Exposure plus its Adjusted Global Tranche Percentage of such Defaulting Lender’s Global Tranche LC Exposure does not exceed such Non-Defaulting Lender’s Global Tranche Commitment and (b) the sum of all nonsuch Non-Defaulting Lenders’ Revolving Global Tranche Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Global Tranche LC Exposure does not exceed the total of all nonNon-Defaulting Lenders’ Commitments; provided Global Tranche Credit Commitments (it being understood that each such reallocation LC Exposure shall not be reallocated after the Revolving Credit Commitments are terminated on the Maturity Date) and (y) all or any part of such LC Exposure comprising US/UK Tranche LC Exposure shall be given effect reallocated among the US/UK Tranche Lenders that are Non-Defaulting Lenders in accordance with their respective Adjusted US/UK Tranche Percentages but only if, at to the date extent (a) the applicable Lender becomes a sum of any such Non-Defaulting Lender, no Inchoate Default or Event ’s US/UK Tranche Credit Exposure plus its Adjusted US/UK Tranche Percentage of Default existssuch Defaulting Lender’s US/UK Tranche LC Exposure does not exceed such Non-Defaulting Lender’s US/UK Tranche Commitment and (b) the sum of all such Non-Defaulting Lenders’ US/UK Tranche Credit Exposures plus such Defaulting Lender’s US/UK Tranche LC Exposure does not exceed the total of all Non-Defaulting Lenders’ US/UK Tranche Credit Commitments (it being understood that such LC Exposure shall not be reallocated after the Revolving Credit Commitments are terminated on the Maturity Date);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower the Borrowers shall within one Banking Day five Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.04(k) for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) abovethis Section 2.21(d), Borrower the Borrowers shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.11(b) with respect to such Defaulting Lender’s LC Exposure (and such fees shall cease to accrue with respect to such Defaulting Lender’s LC Exposure) during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) abovethis Section 2.21(d), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 Sections 2.11(a) and 2.11(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate SharesAdjusted Tranche Percentages; and
(v) 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) abovethis Section 2.21(d), then, without prejudice to any rights or remedies of any LC Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC applicable Issuing Bank Bank(s) until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; andreallocated;
2.11.4 (e) so long as such any Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend renew extend or increase any Letter of Credit, Credit unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10that would result from such newly issued, and participating interests in any newly made Swingline Loan or any newly issued renewed, extended or increased Letter of Credit shall be has been or would be, at the time of such issuance, renewal, extension or increase, fully allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 2.21(d)(i) or otherwise such Swingline Lender or such LC Issuing Bank, as fully cash collateralized by the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory Borrowers pursuant to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it Section 2.21(d)(ii);
(f) in respect of such Lender hereunder. In the event that the Administrative Agent, Borrower, the Swingline Lenders Borrowers and the LC Issuing Banks each agrees agree (acting reasonably) that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date the LC Exposure of such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender’s LC Exposure to be reallocated to such Lender to hold such Loans in accordance with its Proportionate Shareapplicable Tranche Percentage;
(g) the reallocation pursuant to paragraph (d) above or the operation of any other provision of this Section 2.21, will not (i) subject to Section 10.17, constitute a waiver or release of any claim the Borrowers, the Administrative Agent, any Issuing Bank or any other Lender may have against such Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation, or (except with respect to clause (f) above) cause such Defaulting Lender to be a Non-Defaulting Lender, or (ii) except as expressly provided in this Section 2.21, excuse or otherwise modify the performance by the Borrowers of their respective obligations under this Agreement and the other Loan Documents; and
(h) anything herein to the contrary notwithstanding, the Borrowers may (i) require such Lender to assign and delegate all its interests, rights and obligations under the Loan Documents pursuant to Section 2.18(b) or (ii) terminate the unused amount of the Commitment of a Defaulting Lender on a non-pro rata basis upon notice to the Administrative Agent (which shall promptly notify the Lenders thereof), provided that such termination will not be deemed to be a waiver or release of any claim the Borrowers, the Administrative Agent, any Issuing Bank or any Lender may have against such Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Molson Coors Beverage Co), Credit Agreement (Molson Coors Brewing Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (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 2.4.1 the extent, and during the period in which, such Lender is a Defaulting Lender (except and the Borrower shall not be required to pay any such commitment fee that otherwise would have accrued and been required to have been paid to such Defaulting Lender to the extent allocable to (i) and during the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for period in which such Lender is a Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunderLender);
2.11.2 (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, two-thirds of the Lenders, two-thirds of the Lenders of a Class, the Required Lenders or the Required Lenders of a Class 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 7.99.02, except for any amendment or waiver described in Section 9.02(b)(i), except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii), (iii) or (iv)); provided that any amendmentwaiver, waiver amendment or consent modification requiring the consent of all Lenders, two-thirds of the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other Lenders or affected Lenders (as applicable) shall require the consent of such Defaulting Lender;.
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such a Multicurrency Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and such LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Multicurrency Lenders in accordance with their respective Proportionate Shares Applicable Multicurrency Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Multicurrency Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Multicurrency Commitments; provided that each , (y) no non-Defaulting Lender’s Multicurrency Credit Exposure will exceed such reallocation Lender’s Multicurrency Commitment, and (z) the conditions set forth in Section 4.02 are satisfied at such time (and unless the Borrower has notified the Administrative Agent at such time, the Borrower shall be given effect only if, deemed to have represented and warranted that such conditions are satisfied at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default existssuch 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 Banking Day three Business Days following notice by the Administrative Agent (x) firstAgent, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.04(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 any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.10(a) and Section 2.10(b) shall be adjusted in accordance with such non-Defaulting Multicurrency Lenders’ Proportionate Shares; andApplicable Multicurrency Percentages in effect after giving effect to such reallocation;
(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 LC the Issuing Bank or any Lender hereunder, all Facility Fees facility fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter letter of Credit credit fees payable under Section 2.4.2 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or Cash Collateralizedreallocated; and
2.11.4 (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 Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.
(d) so long as such any Multicurrency Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Multicurrency Commitments of the non-Defaulting Multicurrency Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.102.17(c), and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 2.17(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, Borrower, the Swingline Lenders Agent and the LC Issuing Banks each agrees Borrower agree in writing that a Defaulting Lender that is a Dollar Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then then, on the Swingline date of such agreement, such Lender shall purchase at par such of the Loans made to each Borrower of the other Lenders as the Administrative Agent shall determine may be necessary in order for the Lenders to hold such Loans in accordance with their Applicable Dollar Percentage in effect immediately after giving effect to such agreement. In the event that the Administrative Agent, the Borrower and the Issuing Bank each agrees in writing that a Defaulting Lender that is a Multicurrency Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then, on the 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 of the Multicurrency Lenders shall be readjusted to reflect the inclusion of such Lender’s Multicurrency Commitment and on such date such Lender shall purchase at par such the portion of the Loans of the other Multicurrency Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Multicurrency Percentage in effect immediately after giving effect to such agreement.
Appears in 2 contracts
Samples: Senior Secured Revolving Credit Agreement (Barings Capital Investment Corp), Senior Secured Revolving Credit Agreement (Barings Capital Investment Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) Commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 3.3.1 and the Defaulting Lender shall forfeit any right to Letter of Credit Fees pursuant to Section 3.3.2;
(except to the extent allocable to (ib) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.910.1), except provided that any waiver, amendment or modification that (ix) reduces the Commitment(s) amount of any Defaulting Lender may not be increased or extended, principal of or the maturity rate at which interest is payable on the Loans of any such Defaulting Lender, (y) increases the Defaulting Lender’s Commitment or (z) extends the dates fixed for payments of its Loans may not be extended, the rate of principal or interest on any of its the Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the approval or consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists exist at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and such LC Exposure of such Defaulting Lender shall be reallocated ratably among the non-Defaulting Lenders in accordance with their respective Proportionate Shares but Commitment Percentages (determined without regard to such Defaulting Lender’s Commitment Percentage) and this obligation to reallocate shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to reallocation that any non-Defaulting Lender may have or have had against an Issuing Bank, the Borrower or any other Lender (including the Defaulting Lender); provided that such LC Exposure shall be reallocated among the non-Defaulting Lenders only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures Loans and all non-Defaulting Lenders’ LC Exposure plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that , (y) the sum of each such reallocation shall be given effect only if, at the date the applicable Lender becomes a non-Defaulting Lender, no Inchoate Default or Event ’s Loans and such non-Defaulting Lender’s LC Exposure plus its reallocated share of Default existssuch Defaulting Lender’s LC Exposure does not exceed such non-Defaulting Lender’s Commitment and (z) the conditions set forth in Section 5.2 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, within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) secondAgent, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (determined after giving effect to any partial reallocation pursuant to clause (i) aboveabove and any Cash Collateral provided by such Defaulting Lender) in accordance with the procedures set forth in Section 2.2.10 2.11(j) for so long as such LC Exposure is are outstanding;
(iii) if to the extent that the Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) abovethis Section 2.12(c), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 3.3.2 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) if to the extent that the LC Exposure of the non-Defaulting Lenders is are reallocated pursuant to clause (i) abovethis Section 2.12(c), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 3.3.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesCommitment Percentages of the reallocated LC Exposure; and
(v) if all or to the extent that any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.12(c), then, without prejudice to any rights or remedies of any LC an Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 with respect 3.3.2 corresponding to such Defaulting Lender’s LC Exposure that are neither so Cash Collateralized nor reallocated shall be payable to the relevant Issuing Banks ratably in accordance with their respective undrawn amounts of Letters of Credit issued and unreimbursed LC Issuing Bank Exposure until and to the extent that such LC Exposure is reallocated Exposures are Cash Collateralized and/or Cash Collateralized; andreallocated;
2.11.4 (d) so long as such any Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC an Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC that Issuing Bank, as the case may be, Bank is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral that will be provided by the Borrower in accordance with Section 2.2.102.12(c), or such Defaulting Lender and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 2.12(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; 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) shall, to the extent permitted by applicable law, 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) a bankruptcy event 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 any Issuing Bank hereunder, (iii) third, to the funding of any Loan or the funding or Cash Collateralization of any participating interest in any Letter of Credit in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, (iv) fourth, if so determined by the Administrative Agent and the Borrower, held in such term is defined in clause (d) account as Cash Collateral for future funding obligations of the definition Defaulting Lender under this Agreement, (v) fifth, pro rata, to the payment of “any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender”’s breach of its obligations under this Agreement, (vi) with respect to any Person as to which any Lender issixth, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as no Event of Default then 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 event shall continue or (ii) any Swingline Defaulting Lender or any LC Issuing Bank has as a good faith belief that any Lender has defaulted in fulfilling result of such Defaulting Lender’s breach of its obligations under one or more other agreements in which this Agreement and (vii) seventh, to such Lender commits to extend credit, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such LC Issuing Bank, as payment is (x) a prepayment of the case may be, shall have entered into arrangements with Borrower principal amount of any Loans or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it reimbursement obligations in respect of Letter of Credit Disbursements of which a Defaulting Lender has not funded its participation obligations and (y) made at a time when the conditions set forth in Section 5.2.1 are satisfied or waived, such Lender hereunder. 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 reimbursements obligations owed to, any Defaulting Lender.
(f) In the event that the Administrative Agent, Borrower, the Swingline Lenders Borrower and the LC an Issuing Banks Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareCommitment 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 that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Cimarex Energy Co), Credit Agreement (Cimarex Energy Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility (i) Fees otherwise payable pursuant to Section 3.05(a) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 Lender.
(except to ii) The Commitment and the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Commitment and Revolving participation interests in Letters of Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders, the Required Lenders or the Supermajority Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.912.02), except provided that any waiver, amendment or modification (iA) that would increase the Commitment(s) of any Defaulting Lender may not be increased or extended, Commitment or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent Maximum Credit Amount of such Defaulting Lender and or that would amend this Section 4.03(c)(ii) in any manner that would result in such Defaulting Lender’s right to vote as provided herein being further restricted or (iiB) any amendment, waiver or consent requiring the consent of all the Lenders or each adversely affected Lender that by its terms which affects any such Defaulting Lender more differently than all other Lenders or all other adversely than affected Lenders, as the other affected Lenders case may be, shall require the consent of such Defaulting Lender;; and provided further that any redetermination or affirmation of the 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.
2.11.3 if (iii) If any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(iA) all or any part of the Swingline Exposure and such LC Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares 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 (x) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all nonNon-Defaulting Lenders’ Commitments; provided that , (y) the conditions set forth in Section 6.02 are satisfied at such time and (z) the sum of each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Non-Defaulting Lender, no Inchoate Default or Event ’s Revolving Credit Exposure plus its reallocated share of Default existssuch Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall within one Banking (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2.10 2.08(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) above, this Section 4.03 then the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 3.05(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(ivD) if the applicable LC Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) abovethis Section 4.03(c), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 3.05(a) and Section 3.05(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate SharesApplicable 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 (i) or (ii) aboveSection 4.03(c)(iii), then, without prejudice to any rights or remedies of any LC the Issuing Bank or any Lender hereunder, all Facility Fees commitment fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) under Section 3.05(a) and Letter letter of Credit credit fees payable under Section 2.4.2 3.05(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or Cash Collateralized; and
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10, and participating interests in any 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 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Sharereallocated.
Appears in 2 contracts
Samples: Credit Agreement (QR Energy, LP), Credit Agreement (QR Energy, LP)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (i) the standby fees payable pursuant to Section 4.6 shall cease to accrue on the unused portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and Lender;
(ii) its outstanding Swingline Exposure and/or LC Exposure for which such a Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 shall not be included in determining whether, and the Commitment and Revolving proportion of Outstanding Principal under any or all of the Credit Exposure Facilities of such Defaulting Lender shall not be included in determining whether whether, all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.916.10), except provided that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent amendment requiring the consent of all the Lenders or each affected Lender that by its terms (A) materially and adversely affects any such Defaulting Lender more adversely differently than the other affected Lenders Lenders, (B) increases the Commitment or extends the Maturity Date of such Defaulting Lender, or (C) relates to the matters set forth in Sections 16.10(a), 16.10(b)(iii) and 16.10(b)(ix) shall require the consent of such Defaulting Lender;; and
2.11.3 if (iii) for the avoidance of doubt, the Borrowers shall retain and reserve their other rights and remedies respecting each Defaulting Lender.
(b) If any Swingline Exposure Lender fails to fund its Applicable Percentage of an Advance hereunder, then each other Lender shall fund a portion of such Lender’s unfunded Applicable Percentage of such Advance in an amount equal to its Applicable Percentage (and, in calculating a Lender’s Applicable Percentage, the Commitment of any Defaulting Lender shall be excluded) of such unfunded portion of such Advance; provided that, for certainty, no Lender shall be obligated by this Section 16.11 to make or LC Exposure exists provide an Advance which would result in the Outstanding Principal owing to it being in excess of its Commitment after taking into account any re-allocations pursuant to Section 16.11(d).
(c) If the re-allocation described in subparagraph (b) above cannot be effected, or can only partially be effected, then (to the extent permitted by Applicable Law) such Defaulting Lender shall, within 1 Banking Day following notice by the Agent, provide Cash Collateral to the Agent for such Defaulting Lender’s Applicable Percentage of such Advance (after giving effect to any partial re-allocation pursuant to subparagraph (b) above) for so long as such Advance is outstanding.
(d) If any Letters of Credit are outstanding at the time such that a Lender becomes a Defaulting Lender (such Defaulting Lender’s Applicable Percentage of the Equivalent Amount in Canadian Dollars of the Outstanding Principal of such Letters of Credit is the “Defaulting Lender Exposure”), then:
(i) all or any part of to the Swingline extent the Defaulting Lender has not provided Cash Collateral for its Defaulting Lender Exposure and LC Exposure of pursuant to Section 16.11(c) above, such Defaulting Lender Exposure shall be reallocated re-allocated among the non-Defaulting Lenders under the Working Capital Facility for the purposes of Section 6.1 in accordance with their respective Proportionate Shares but Applicable Percentages thereunder (and, in calculating a Lender’s Applicable Percentage, the Commitment of any Defaulting Lender shall be excluded); but, for each non-Defaulting Lender, such re-allocation may only be effected if and to the extent that the sum of all (A) any non-Defaulting Lenders’ Revolving Credit Exposures Lender’s Applicable Percentage of all outstanding Advances under the Working Capital Facility, plus (B) such non-Defaulting Lender’s rateable share (after giving effect to the reallocation contemplated herein) of the Defaulting Lender’s Exposure, does not exceed such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed Commitment under the total of all non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default existsWorking Capital Facility;
(ii) if the reallocation re-allocation described in clause (i) above cannotnot be effected, or can only partially, partially be effected, then the Borrower shall within one Banking Day following notice by Administrative Agent a Fronting Lender prepay outstanding Letters of Credit (xby the provision of Cash Collateral to the Agent) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for to the benefit extent necessary to allow a full reallocation of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Lender Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 for so long as such LC Exposure is outstanding;aforesaid; and
(iii) if Borrower Cash Collateralizes any portion the Applicable Percentages of the non-Defaulting Lenders are re-allocated pursuant to this Section 16.11(d), then the LC Fees payable to the Lenders pursuant to Section 4.5 shall be adjusted to give effect to such re-allocations in accordance with each such non-Defaulting Lender’s LC Exposure Applicable Percentages and if the applicable Borrower provides Cash Collateral pursuant to clause (ii) above, then the applicable Borrower shall not be required to pay the LC Fees or fronting fees attributable to the Cash Collateralized exposure of such Letters of Credit. Subject to Section 16.17, no reallocation hereunder shall constitute a waiver or release of any Letter claim of Credit fees to such any party hereunder against a Defaulting Lender pursuant to Section 2.4.2 with respect to such arising from that Lender having become a Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) if the LC Exposure , including any claim of the a non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter Lender as a result of Credit fees payable to the Lenders pursuant to Section 2.4.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate Shares; andLender’s increased exposure following such reallocation.
(ve) 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 LC Issuing Bank or If any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10, and participating interests in any 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 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender cease to be a Defaulting Lender, then the Swingline Exposure and LC Exposure then, upon becoming aware of the same, the Agent shall notify the other Lenders and (in accordance with the written direction of the Agent) such Lender (which has ceased to be a Defaulting Lender) shall purchase, and the other Lenders shall be readjusted on a pro rata basis sell and assign to reflect the inclusion such Lender, portions of such Loans equal in total to such Lender’s Commitment Applicable Percentage share thereof without regard to subsection (b) of this Section 16.11.
(f) Each Defaulting Lender hereby indemnifies the Principal Borrower for any losses, claims, costs, damages or liabilities (including reasonable out-of-pocket expenses and reasonable legal fees on a solicitor and his own client basis) incurred by the Principal Borrower as a result of such date such Defaulting Lender shall purchase at par such failing to comply with the terms of the this Agreement, including any failure to fund its portion of any Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may required to be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Sharemade by it hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Kinder Morgan, Inc.), Credit Agreement (Kinder Morgan, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Credit Lender or any Lender under an Incremental Revolving Loan Facility becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment or Incremental Revolving Loan Amount of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereundersubsection 2.6(a);
2.11.2 (b) the Revolving Credit Commitment and Revolving Credit Exposure Extensions of Credit, or the Incremental Revolving Loan Amount and Revolving Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders or Majority Facility Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.9subsection 10.1); provided, except that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased in the case of an amendment, waiver or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without other modification expressly requiring the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each Lender affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby;
2.11.3 (c) if any Swingline Exposure or LC L/C Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC L/C Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Revolving Credit Percentages but only to the extent that (x) the conditions set forth in subsection 5.2 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfed at such time) and (y) the sum of all such non-Defaulting Lenders’ Lender’s Revolving Extensions of Credit Exposures plus its share of such Defaulting Lender’s Swingline Exposure and LC L/C Exposure does not exceed the total of all such non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists’s Revolving Credit Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 8 for so long as such LC L/C Exposure is outstanding;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 subsection 3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 subsection 2.6(a) and subsection 3.3(a) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesRevolving Credit Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC L/C 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 LC the Issuing Bank Lender or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 subsection 3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the relevant LC Issuing Bank Lender until and to the extent that such LC L/C Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 so long as such (d) in the case of a Revolving Credit Lender that is a Defaulting Lender, no so long as it is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC L/C Exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.10, subsection 2.22(c) and participating interests in any 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 2.2.7 subsection 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, the Borrower, the Swingline Lenders Lender and the LC Issuing Banks Lender each agrees that a Defaulting Lender that is a Revolving Credit Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC L/C Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareRevolving Credit Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Lin Tv Corp.), Credit Agreement (Lin Tv Corp.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the daily unused amount of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.12(a);
2.11.2 (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.99.02), except ; provided that (i) any waiver, amendment or modification requiring the Commitment(s) consent of any all Lenders or each affected Lender which affects such Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) any amendmentamendment or modification that increases, waiver or consent requiring extends the consent of all the Lenders or each affected Lender that by its terms affects any maturity of, such Defaulting Lender more adversely than the other affected Lenders Lender’s Commitment shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares but only to the extent the sum of all non-Defaulting 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; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower shall within one Banking (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.06(j) for so long as such LC Exposure is outstanding;
(iiiii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 2.21(c), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iviii) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate Shares; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized not cash collateralized pursuant to clause (i) or (ii) aboveSection 2.21(c), then, without prejudice to any rights or remedies of any LC the Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such any Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.10, and participating interests in any 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 2.2.7 (and such Defaulting Lender shall not participate therein2.21(c). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, the Borrower, each Issuing Bank and the Swingline Lenders and the LC Issuing Banks Lender each agrees agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Inergy L P), Credit Agreement (Inergy Holdings, L.P.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.12(a);
2.11.2 (b) the 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 the Majority in Interest of the Term Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.99.02); provided, except that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased in the case of an amendment, waiver or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without other modification requiring the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each Lender directly affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting 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 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 (A) the sum of all non-Defaulting 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 Proportionate Shares 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 Swingline Exposure and Dollar Tranche LC Tranche Exposure does not exceed the total of all non-Defaulting Dollar Tranche Lenders’ CommitmentsDollar 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; provided that each and all or any part of the Multicurrency Tranche LC Exposure of such reallocation Defaulting Lender shall be given effect reallocated among the non-Defaulting Multicurrency Tranche Lenders in accordance with their respective Multicurrency Tranche Percentages but only if, at to the date extent (E) the applicable Lender becomes a sum of all non-Defaulting Lenders’ Multicurrency Tranche Revolving Credit Exposures plus such Defaulting Lender, no Inchoate Default or Event ’s Multicurrency Tranche LC Tranche Exposure does not exceed the total of Default existsall non-Defaulting Multicurrency Tranche Lenders’ Multicurrency Tranche Commitments and (F) each non-Defaulting Lender’s Multicurrency Tranche Revolving Credit Exposure does not exceed such non-Defaulting Lender’s Multicurrency Tranche Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower the Company shall within one Banking (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Bank only Borrower’s the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.06(j) for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower the Borrowers shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.4.2 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable 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 LC the Issuing Bank or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, 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 non‑Defaulting Lenders and/or Cash Collateral cash collateral will be provided by Borrower the Company in accordance with Section 2.2.102.24(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 in a manner consistent with Section 2.2.7 2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a Parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof Original Effective Date and for so long as such event shall continue or (ii) any the Swingline Lender or any LC 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, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC the Issuing Bank, as the case may be, shall have entered into arrangements with Borrower the Company or such Lender, satisfactory to such the Swingline Lender or such LC 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, Borrowerthe Company, the Swingline Lenders Lender and the LC Issuing Banks Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such 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 Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage.
Appears in 2 contracts
Samples: Amendment and Restatement Agreement (LKQ Corp), Amendment and Restatement Agreement (LKQ Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Swing Line Commitment or Letter of Credit Commitment exists at the time a Lender having a Commitment becomes a Defaulting Lender (such Lender, then the following provisions shall apply for so long as such Lender is a “Defaulting Revolving Lender”) then:
2.11.1 Facility Fees shall cease to accrue on the Commitment of (a) such Defaulting Lender pursuant Revolving Lender’s right to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender approve or LC Issuing Bank hereunder);
2.11.2 the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.9), except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) disapprove any amendment, waiver or consent requiring with respect to this amendment shall be restricted as set forth in the consent definition of all the Required Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderand Section 15.1;
2.11.3 if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(ib) all or any part of the Swingline Exposure such Swing Line Commitment and LC Exposure Letter of such Defaulting Lender Credit Commitment shall be reallocated among the non-Defaulting Revolving Lenders in accordance with their respective Proportionate Shares Pro Rata Share of such Swing Line Commitment and/or Letter of Credit Commitment but only to the extent (i) the sum of all the non-Defaulting Revolving Lenders’ Pro Rata Shares of the sum, as at any date of determination, of (x) the aggregate principal amount of all Revolving Loans (other than Revolving Loans made for the purpose of reimbursing an Issuing Lender for any amount drawn under any Letter of Credit, but not yet so applied), (x) the aggregate principal amount of all outstanding Swing Line Loans and (z) the Letter of Credit Exposures Usage, plus such Defaulting Revolving Lender’s Swingline Pro Rata Share of Revolving Exposure and LC Exposure does do not exceed the total of all non-Defaulting Revolving Lenders’ CommitmentsCommitments and (ii) the conditions set forth in Section 12.3 are satisfied at such time; provided that the aggregate obligation of each non-Defaulting Revolving Lender to acquire, refinance or fund participations in Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of (A) the Commitment of that non-Defaulting Lender minus (B) the sum of the aggregate outstanding principal amount of the Revolving Loans of such reallocation shall be given effect only if, at the date the applicable non-Defaulting Lender becomes a plus such non-Defaulting Lender, no Inchoate Default or Event ’s Pro Rata Share of Default existsthe outstanding Swing Line Loans and Letter of Credit Usage;
(iic) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, Borrower the Company shall (i) first, within one Banking Business Day following notice by the Administrative Agent (x) firstAgent, prepay such Swingline Exposure any outstanding Swing Line Loans to the extent the Swing Line Commitments related thereto have not been reallocated pursuant to clause (a) above and (yii) second, within five Business Days following notice by the Administrative Agent, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure Pro Rata Share of the Letter of Credit Commitment (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with the procedures set forth in Section 2.2.10 for so long as such LC Exposure Letter of Credit Commitment is outstanding;
(iiid) if Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower shall not be required to pay any the Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 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 Commitment of the non-Defaulting Revolving Lenders is reallocated pursuant to clause (ia) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 5 solely in respect of the unfunded portion of such Lenders’ Commitment shall be adjusted in accordance with such non-Defaulting Revolving Lenders’ Proportionate Pro Rata Shares; and
(ve) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized pursuant to clause (i) or (ii) aboveIf the Company, thenthe Administrative Agent, without prejudice to any rights or remedies of any LC the Swing Line Lender and each Issuing Bank or any Lender hereunder, all Facility Fees agree in writing that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such a Lender is no longer a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issuethe Administrative Agent will so notify the parties hereto, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, whereupon as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower effective date specified in accordance with Section 2.2.10, such notice and participating interests in subject to any 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 2.2.7 conditions set forth therein (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) which may include arrangements with respect to any Person as to which any cash collateral), that Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may bewill, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agentextent applicable, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such that portion of the outstanding Loans of the other Lenders (or take such other than Swingline Loans) actions as the Administrative Agent shall may determine may to be necessary to cause the Loans and funded and unfunded participations in order for such Lender Letters of Credit and Swing Line Loans to hold such Loans be held pro rata by the Lenders in accordance with its Proportionate Sharethe Commitments (without giving effect to paragraph (b) above), whereupon, such Lender will cease to be a Defaulting Revolving Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Company while that Lender was a Defaulting Revolving Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Revolving Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Revolving Lender.
Appears in 2 contracts
Samples: Credit Agreement (Centene Corp), Credit Agreement (Centene Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) commitment fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except 2.12(a) and facility fees shall cease to the extent allocable to (i) the outstanding principal amount of accrue on the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which Commitment of such Defaulting Lender has provided Cash Collateral pursuant to the relevant Swingline Lender or LC Issuing Bank hereunderSection 2.12(b);
2.11.2 (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.99.02); provided, except that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased in the case of an amendment, waiver or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without other modification requiring the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each Lender affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Lenders that are Revolving Lenders in accordance with their respective Proportionate Shares Revolving Percentages but only to the extent that the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.06(j) 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 any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.12(c) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.12(a) and Section 2.12(c) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesRevolving 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 LC the Issuing Bank or any other Lender hereunder, all Facility Fees facility fees payable pursuant to Section 2.12(b) that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and Letter letter of Credit credit fees payable under Section 2.4.2 2.12(c) with respect to such Defaulting Lender’s LC Exposure not so reallocated or cash collateralized shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Revolving Lender is a Defaulting Lender, no the Swingline Lender Lenders shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, 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 cash collateral will be provided by the Borrower in accordance with Section 2.2.102.20(c), and participating interests in Swingline Exposure related to any newly made Swingline Loan or L/C Exposure related to any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event or Bail-In Action with respect to any Person as to which any a Lender is, directly or indirectly, a Subsidiary Parent shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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, no such Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, the Borrower, the each Swingline Lenders Lender and the LC Issuing Banks Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareRevolving Percentage.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Xenia Hotels & Resorts, Inc.), Revolving Credit Agreement (Xenia Hotels & Resorts, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility (a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder4.1(a);
2.11.2 (b) the Commitment and Revolving Credit Total Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.913.1), except ; provided that (i) any waiver, amendment or modification requiring the Commitment(sconsent of all Lenders pursuant to Section 13.1 (other than Section 13.1(ix)) or requiring the consent of each affected Lender pursuant to Section 13.1(i) or (viii), shall require the consent of such Defaulting Lender (which for the avoidance of doubt would include any change to the Maturity Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default interest rates) and any increase in such Defaulting Lender’s Commitment) and (ii) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e., the Commitment Percentage of the Borrowing Base) of any a Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC Letter of Credit Exposure exists at the time such a Lender becomes a Defaulting Lender then:
Lender, then (i) all or any part of the Swingline Exposure and LC such Letter of Credit Exposure of such Defaulting Lender shall will, subject to the limitation in the first proviso below and subject to the requirement that there is no Default or Event of Default then existing at such time, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders pro rata in accordance with their respective Proportionate Shares but only Commitment Percentages; provided that (A) each Non- Defaulting Lender’s Letter of Credit Exposure may not in any event exceed the Commitment Percentage of the Loan Limit of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuers or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the sum “unreallocated portion”) of all non-Defaulting Lenders’ Revolving Credit Exposures plus such the Defaulting Lender’s Swingline Letter of Credit Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effectedso reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.1 5(c)(i) or otherwise, the Borrower shall within one Banking Day two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) ), in accordance with the procedures set forth in Section 2.2.10 3.8 for so long as such LC Letter of Credit Exposure is outstanding;
, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to clause (ii) aboveSection 2.15(c), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 4.1(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure during the period such Defaulting Lender’s LC Letter of Credit Exposure is Cash Collateralized;
, (iv) if the LC Letter of Credit Exposure of the non-non- Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.15(c), then the Letter of Credit fees Fees payable to for the account of the Lenders pursuant to Section 2.4.2 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate Shares; and
Commitment Percentages and the Borrower shall not be required to pay any Letter of Credit Fees to the Defaulting Lender pursuant to Section 4.1(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (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 2.15(c), then, without prejudice to any rights or remedies of any LC Issuing Bank the Letter of Credit Issuer or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit fees Fees payable under Section 2.4.2 4.1(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the relevant LC Issuing Bank Letter of Credit Issuer until and to the extent that such LC Letter of Credit Exposure is reallocated Cash Collateralized and/or Cash Collateralizedreallocated; and
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall (d) the Letter of Credit Issuer will not be required to fund issue any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any new Letter of CreditCredit or amend any outstanding Letter of Credit to increase the Stated Amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless such Swingline Lender or LC Issuing Bank, as the case may be, Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the related exposure and the to such Defaulting Lender’s then outstanding LC Exposure will be 100% Lender is eliminated or fully covered by the Commitments of the nonNon-Defaulting Lenders and/or or by Cash Collateral will be provided by Borrower Collateralization or a combination thereof in accordance with Section 2.2.10, and participating interests clause (c) above or otherwise in any newly made Swingline Loan or any newly issued or increased a manner reasonably satisfactory to the Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 Issuer.
(and such Defaulting Lender shall not participate therein). e) If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders Administrative Agent and the LC Issuing Banks each agrees Letter of Credit Issuer agree in writing in their discretion that a Lender that is a Defaulting Lender has adequately remedied all matters that caused such Lender should no longer be deemed to be a Defaulting Lender, then the Swingline Exposure Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and LC subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Letter of Credit Exposure of the Lenders such Lender reallocated pursuant to Section 2.15(c) shall be readjusted reallocated back to reflect such Lender; provided that, except to the inclusion extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Sharehaving been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (KKR Financial Holdings LLC), Credit Agreement (KKR Financial Holdings LLC)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unused Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.12(a);
2.11.2 (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.99.02); provided, except that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased or extended, or in the maturity case of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any an amendment, waiver or consent other modification requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC Uncommitted Swingline Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Uncommitted Swingline Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Commitments but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Uncommitted Swingline Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsCommitments and (y) the conditions set forth in Section 4.02 are satisfied at such time; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 for so long as such LC Exposure is outstandingUncommitted Swingline Exposure;
(iiid) if Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 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 clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate 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 LC Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of CreditLoan, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10, and participating interests in Swingline Exposure related to any 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 2.2.7 2.20(c)(i) (and such Defaulting Lender shall not participate therein); and
(e) any 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 VI or otherwise, and including any amounts made available to the Administrative Agent by such 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 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 each Swingline Lender 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 the Administrative Agent; fourth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy potential future obligations of such Defaulting Lender to fund Loans and other obligations under this Agreement; fifth, to the payment of any amounts owing to the Lenders or Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender or Swingline Lender 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) the Borrower makes a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 4.02 were satisfied or waived, then such payment shall be applied solely to pay the relevant Loans of the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section 2.20(e). If 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 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event or a Bail-In Action with respect to any Person as to which a Lender Parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof Effective Date and for so long as such event shall continue or (ii) any a Swingline Lender or any LC 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 such Swingline Lender shall not be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, the Borrower, the Swingline Lenders and the LC Issuing Banks Uncommitted Swingline Lenders, if any, each agrees agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC the Uncommitted Swingline Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans and Uncommitted Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage. No adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Td Ameritrade Holding Corp), Credit Agreement (Td Ameritrade Holding Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting LenderLender hereunder, then the following provisions shall apply for so long as such Defaulting Lender is a Defaulting Lender:
2.11.1 Facility Fees shall cease to accrue on (a) the Commitment of such Defaulting Lender pursuant shall not be entitled to receive fees payable under Section 2.4.1 (except 2.11(a) for any period during which that Lender is a Defaulting Lender unless and only to the extent allocable to (i) the sum of the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder)it;
2.11.2 (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining disregarded for purposes of any determination of whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.910.02), except provided that this clause (ib) shall not apply in the Commitment(s) case of any Defaulting Lender may not be increased waiver, amendment or extended, or modification described in the maturity first proviso of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (iiSection 10.02(b) any amendment, waiver or consent requiring the consent of all the Lenders or each Lender affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders pro rata in accordance with their respective Proportionate Shares Applicable Percentages but only to the extent that the sum amount of all any non-Defaulting Lenders’ Revolving Credit Exposures Lender’s Exposure plus such non-Defaulting Lender’s pro rata share of such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total Commitment of all such non-Defaulting Lenders’ CommitmentsLender; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower the Borrowers shall within one Banking Business Day following notice by the Administrative Agent (x) firstAgent, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 for so long as such LC Exposure is outstandingExposure;
(iiid) if Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 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 clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate 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 LC Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by Borrower in accordance with Section 2.2.10the Borrowers, and participating interests in any 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 2.2.7 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a Parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any the Swingline Lender or any LC 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 the Swingline Lender shall not be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of CreditLoan, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with the Administrative Borrower or such Lender, satisfactory to such the Swingline Lender or such LC 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, Borrower, the Administrative Borrower and the Swingline Lenders and the LC Issuing Banks Lender each agrees in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such date such written agreement Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage .
Appears in 2 contracts
Samples: Credit Agreement (Eaton Vance Corp), Credit Agreement (Eaton Vance Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility (a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder4.1(a);
2.11.2 the (b) The Commitment and Revolving Credit Total Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders or the Required Lenders or each affected Lender have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.913.1), except ; provided that (i) any waiver, amendment or modification requiring the Commitment(sconsent of all Lenders pursuant to Section 13.1 (other than clause (x of the second proviso to Section 13.1(a)) or requiring the consent of each affected Lender pursuant to Section 13.1(i) or (ix) shall require the consent of such Defaulting Lender (which for the avoidance of doubt would include any change to the Maturity Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default interest rates) and any increase in or extension of such Defaulting Lender’s Commitment) and (ii) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e., the Commitment Percentage of the Borrowing Base) of any a Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 if (c) If any Swingline Exposure or LC Letter of Credit Exposure exists at the time such a Lender becomes a Defaulting Lender then:
Lender, then (i) all or any part of the such Swingline Exposure and LC Letter of Credit Exposure of such Defaulting Lender shall will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders pro rata in accordance with their respective Proportionate Shares but only Commitment Percentages; provided that (A) each Non-Defaulting Lender’s Total Exposure may not in any event exceed the Commitment Percentage of the Loan Limit of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Banks or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the sum “unreallocated portion”) of all non-Defaulting Lenders’ Revolving Credit Exposures plus such the Defaulting Lender’s Swingline Exposure and LC or Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effectedso reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.15(c)(i) or otherwise, the Borrower shall within one Banking Day two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC applicable Issuing Banks Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) ), in accordance with the procedures set forth in Section 2.2.10 3.7 for so long as such LC Letter of Credit Exposure is outstanding;
, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to clause (ii) abovethis Section 2.15(c), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 4.1(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure during the period such Defaulting Lender’s LC Letter of Credit Exposure is Cash Collateralized;
Collateralized (and such fees shall be payable to the Issuing Banks), (iv) if the LC Letter of Credit Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) abovethis Section 2.15(c), then the Letter of Credit fees Fees payable to for the account of the Lenders pursuant to Section 2.4.2 4.1(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate Shares; and
Commitment Percentages and the Borrower shall not be required to pay any Swingline Loan fees (if any) or Letter of Credit Fees to the Defaulting Lender pursuant to Section 4.1(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (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 2.15(c), then, without prejudice to any rights or remedies of any LC Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit fees Fees payable under Section 2.4.2 4.1(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the relevant LC such Issuing Bank until and to the extent that such LC Letter of Credit Exposure is reallocated Cash Collateralized and/or Cash Collateralized; andreallocated;
2.11.4 so (d) So long as such any Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC Issuing Bank shall will be required to issue, amend or increase issue any new Letter of CreditCredit or amend any outstanding Letter of Credit to increase the Stated Amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless such Swingline Lender or LC each Issuing Bank, as the case may be, Bank is reasonably satisfied that any exposure that would result from the related exposure and the to such Defaulting Lender’s then outstanding LC Exposure will be 100% Lender is eliminated or fully covered by the Commitments of the nonNon-Defaulting Lenders and/or or by Cash Collateral will be provided by Borrower Collateralization or a combination thereof in accordance with Section 2.2.10clause (c) above or otherwise in a manner reasonably satisfactory to such Issuing Bank, and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.2.7 2.15(c)(i) (and such Defaulting Lender Lenders shall not participate therein). ;
(e) If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender isBorrower, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders Lender and the LC each Issuing Banks each agrees Bank agree in writing in their discretion that a Lender that is a Defaulting Lender has adequately remedied all matters that caused such Lender should no longer be deemed to be a Defaulting Lender, then the Swingline Exposure Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and LC subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Letter of Credit Exposure of the Lenders such Lender reallocated pursuant to Section 2.15(c) shall be readjusted reallocated back to reflect such Lender; provided that, except to the inclusion extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s Commitment having been a Defaulting Lender; and
(f) 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 Section 11 or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 13.8), 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 each Issuing Bank and the Swingline Lender 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 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 Borrower, 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; fifth, to the payment of any amounts owing to the Lenders, each Issuing Bank or the Swingline Lender as a result of any final judgment of a court of competent jurisdiction obtained by any Lender, such date Issuing Bank or the Swingline Lender against that Defaulting Lender as a result of that 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 final judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and seventh, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such Lender shall purchase at par such payment is a payment of the principal amount of any Loans of or Unpaid Drawings, such payment shall be applied solely to pay the relevant Loans of, and Unpaid Drawings owed to, the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section 2.15(f). Any payments, prepayments or other Lenders amounts paid or payable to a Defaulting Lender that are applied (other than Swingline Loansor held) as Administrative Agent to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to Section 3.7 shall determine may be necessary in order for such deemed paid to and redirected by that Defaulting Lender, and each Lender to hold such Loans in accordance with its Proportionate Shareirrevocably consents hereto.
Appears in 2 contracts
Samples: Credit Agreement (Vine Energy Inc.), Credit Agreement (Vine Energy Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender with a Revolving Commitment or Revolving Credit Exposure becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the Revolving Commitment of such Defaulting Lender pursuant to Section 2.4.1 2.12;
(except to the extent allocable to (ib) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or Commitments, LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or Required Revolving Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.99.02), except provided that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased in the case of an amendment, waiver or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without other modification requiring the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each Lender affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then, so long as no Event of Default has occurred and is continuing:
(i) all or any part of the such Swingline Exposure and or LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Revolver Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.05(j) 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 any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.12(a) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable Revolver Percentages; andor
(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) above, then, without prejudice to any rights or remedies of any LC the Issuing Bank or any other Lender hereunder, all Facility Fees facility fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and Letter letter of Credit credit fees payable under Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or Cash Collateralizedreallocated; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of CreditCredit unless, unless in each case, such Swingline Lender or LC Issuing Bank, as the case may be, person 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 cash collateral will be provided by the Borrower in accordance with Section 2.2.102.19(c), and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 2.19(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a Parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof Funding Date and for so long as such event shall continue or (ii) any the Swingline Lender or any LC 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, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposureunless, as in each case, the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to such the Swingline Lender or such LC 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, the Borrower, the Swingline Lenders Lender and the LC Issuing Banks Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Revolver Percentage. The Borrower shall make any payments under Section 2.16 to any assignor resulting from such assignments.
Appears in 2 contracts
Samples: Credit Agreement (Manitowoc Foodservice, Inc.), Escrow Agreement (Manitowoc Foodservice, 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:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.12(a);
2.11.2 (b) the unused Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.99.02), except ; provided that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased in the case of an amendment, waiver or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without other modification requiring the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each Lender affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby under Section 9.02;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) so long as no Default has occurred and is continuing: all or any part of the Swingline Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Dollar Tranche Lenders in accordance with their respective Dollar Tranche Percentages (after giving effect to the reallocation provisions of Sections 2.05(d) and 2.06(k)) but only to the extent (A) the sum of all non-Defaulting 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 in respect of any Class does not exceed such non-Defaulting Lender’s Dollar Tranche Commitment in respect of such Class; 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 Proportionate Shares Dollar Tranche Percentages (after giving effect to the reallocation provisions of Sections 2.05(d) and 2.06(k)) but only to the extent (C) the sum of all non-Defaulting Lenders’ Dollar Tranche Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Dollar Tranche LC Exposure does not exceed the total of all non-Defaulting Dollar Tranche Lenders’ CommitmentsDollar Tranche Commitments and (D) each non-Defaulting Lender’s Dollar Tranche Revolving Credit Exposure in respect of any Class does not exceed such non-Defaulting Lender’s Dollar Tranche Commitment in respect of such Class; provided that each and all or any part of the Multicurrency Tranche LC Exposure of such reallocation Defaulting Lender shall be given effect reallocated among the non-Defaulting Multicurrency Tranche Lenders in accordance with their respective Multicurrency Tranche Percentages but only if, at to the date extent (E) the applicable Lender becomes a sum of all non-Defaulting Lenders’ Multicurrency Tranche Revolving Credit Exposures plus such Defaulting Lender, no Inchoate Default or Event ’s Multicurrency Tranche LC Exposure does not exceed the total of Default existsall non-Defaulting Multicurrency Tranche Lenders’ Multicurrency Tranche Commitments and (F) each non-Defaulting Lender’s Multicurrency Tranche Revolving Credit Exposure in respect of any Class does not exceed such non-Defaulting Lender’s Multicurrency Tranche Commitment in respect of such Class;
(ii) if the reallocation reallocations described in clause (i) above cannot, or can only partially, be effected, the respective Borrower shall within one Banking (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Bank only the respective Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.06(j) for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower the Borrowers shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period (and to the extent) such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (iii) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable Percentages (after giving effect to the reallocation provisions of Sections 2.05(d) and 2.06(k)); 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 LC the Issuing Bank or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, 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 cash collateral will be provided by Borrower the Borrowers in accordance with Section 2.2.102.22(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 2.2.7 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a Holding Company of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof Closing Date and for so long as such event shall continue or (ii) any the Swingline Lender or any LC 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, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC the Issuing Bank, as the case may be, shall have entered into arrangements with Borrower the Borrowers or such Lender, reasonably satisfactory to such the Swingline Lender or such LC 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, Borrowerthe Borrowers, the Swingline Lenders Issuing Bank and the LC Issuing Banks Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Dollar Tranche Revolving Loans of the other Lenders any Class (other than Swingline Loans) and/or Multicurrency Tranche Revolving Loans of any Class of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Endo International PLC), Credit Agreement (Endo International PLC)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, without limiting any other rights the Borrower may have against such Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.8(a);
2.11.2 (b) the Commitment and Revolving Extension of Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.910.01), except ; provided that (i) the Commitment(s) of any such Defaulting Lender Lender’s Commitment may not be increased or extendedextended without its consent, (ii) the principal amount of, or the maturity interest or fees payable on, Loans or Letters of any of its Loans may not be extended, the rate of interest on any of its Loans Credit may not be reduced and or excused or the principal amount scheduled date of any of its Loans payment may not be forgiven, in each case without the consent of postponed as to such Defaulting Lender without such Defaulting Lender’s consent and (iiiii) any amendmentwaiver, waiver amendment or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than other Lenders or affected Lenders, as the other affected Lenders case may be, shall require the consent of such Defaulting Lender;.
2.11.3 (c) if any Swingline Exposure Loans or LC Exposure L/C Obligations exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure Loans and LC Exposure L/C Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure Extensions does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the Swingline Exposure Loans and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure Revolving Percentage of the L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 8 for so long as such LC Exposure is L/C Obligations are outstanding;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure Revolving Percentage of the L/C Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 3.3 with respect to such Defaulting Lender’s LC Exposure Revolving Percentage of the L/C Obligations during the period such Defaulting Lender’s LC Exposure Revolving Percentage of the L/C Obligations is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure Revolving Percentage of the L/C Obligations of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 3.3 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesRevolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure Revolving Percentage of the L/C Obligations 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 LC the Issuing Bank or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 3.3 with respect to such Defaulting Lender’s LC Exposure Revolving Percentage of the L/C Obligations shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure Revolving Percentage of the L/C Obligations is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure Revolving Percentage of the L/C Obligations will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.102.23(c), and participating interests in any 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 2.2.7 2.23 (c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to a Parent of any Person as to which any Revolving Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any the Swingline Lender or any LC 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, no the Swingline Lender and the Issuing Bank shall promptly notify the Borrower and the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Revolving Lender, satisfactory to such the Swingline Lender or such LC the Issuing Bank, as the case may be, to defease any risk to it in respect of such Revolving Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lenders Lender and the LC Issuing Banks Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then the Revolving Percentage of Swingline Exposure Loans and LC Exposure L/Obligations of the Revolving Lenders shall be readjusted to reflect the inclusion of such 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 Loans in accordance with its Proportionate ShareRevolving Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Universal Health Services Inc), Credit Agreement (Universal Health Services Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement any Loan Document to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility (i) Revolving Commitment Fees otherwise payable pursuant to Section 3.05(a) shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and Lender.
(ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the The Revolving Commitment and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Majority Lenders, the Majority Revolving Lenders or each adversely affected Lender have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.912.02), except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the no consent of such Defaulting Lender and shall be required to take any action hereunder that requires the consent of all Lenders, the Majority Lenders, the Majority Revolving Lenders or each adversely affected Lender (iiincluding any consent to any amendment or waiver pursuant to Section 12.02), provided that any waiver, amendment or modification (A) that would increase the Commitment of such Defaulting Lender, (B) that would reduce the principal of any amendment, waiver Loan owed to such Defaulting Lender or consent extend the final maturity thereof or (C) requiring the consent of all the Lenders or each adversely affected Lender that by its terms which affects any such Defaulting Lender more differently than all other Lenders or all other adversely than affected Lenders, as the other affected Lenders case may be, shall require the consent of such Defaulting Lender;; provided further, that any amendment to the foregoing proviso shall require the consent of all Lenders, including any Defaulting Lenders.
2.11.3 if (iii) If any Swingline LC Exposure or LC Swingline Exposure exists at the time such a Revolving Lender becomes a Defaulting Lender Lender, then:
(iA) all or any part of the such LC Exposure or Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated (effective as of the date such Revolving Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Revolving Percentages (for the purposes of such reallocation, the Defaulting Lender’s Revolving Commitment shall be disregarded in determining the Non-Defaulting Lenders’ Applicable Revolving Percentages), but only to the extent that (x) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline LC Exposure and LC Swingline Exposure does not exceed the total of all nonNon-Defaulting Lenders’ Revolving Commitments; provided that , (y) the sum of each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Non-Defaulting Lender, ’s Revolving Credit Exposure plus its reallocated share of such Defaulting Lender’s LC Exposure and Swingline Exposure does not exceed such Non-Defaulting Lender’s Revolving Commitment and (z) no Inchoate Default or Event of Default existshas occurred and is continuing at such time;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall shall, within one Banking Day three (3) Business Days following written notice by from the Administrative Agent (x) firstAgent, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure and Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2.10 2.07(e) for so long as such LC Exposure or Swingline 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) abovethis Section 4.03(c)(iii), then the Borrower shall not be required to pay any Letter of Credit participation fees to such Defaulting Lender pursuant to Section 2.4.2 3.05(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(ivD) if all or any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) abovethis Section 4.03(c)(iii), then the Letter of Credit fees payable to the Revolving Lenders pursuant to Section 2.4.2 Sections 3.05(a) and 3.05(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate SharesApplicable Revolving Percentages; and
(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 (i) or (ii) abovethis Section 4.03(c)(iii), then, without prejudice to any rights or remedies of any LC Issuing Bank or any Revolving Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 3.05(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant applicable Issuing Banks, ratably based on the portion of such LC Exposure attributable to Letters of Credit issued by each such Issuing Bank Bank, until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required cash collateralized pursuant to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10, and participating interests in any 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 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (dA) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (iiB) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Shareabove.
Appears in 2 contracts
Samples: Credit Agreement (Exterran Corp), Credit Agreement (Exterran Holdings Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the Commitment unfunded portion of the Commitments of such Defaulting Lender pursuant to Section 2.4.1 2.12(a);
(except to the extent allocable to (ib) the outstanding aggregate principal amount of the Loans, Revolving Loans funded by it L/C Exposures, Swingline Exposures and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Available Unused Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the all Lenders, Required Lenders, Majority Lenders or affected Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.99.08), except ; provided that (i) the Commitment(s) of any Defaulting Lender may not be increased waiver, amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other affected Lenders shall require the consent of such Defaulting Lender, (ii) the Commitment of such Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender and (iii) any amendment that reduces the principal amount of, rate of interest on, or the final maturity of, any Loan made by such Defaulting Lender, shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC Revolving L/C Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC or Revolving L/C Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Revolving Facility Percentages but only to the extent such reallocation does not cause the sum aggregate Revolving Facility Credit Exposure of all any non-Defaulting Lenders’ Revolving Credit Exposures plus Lender to exceed such non-Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ CommitmentsRevolving Facility Commitment; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Day five Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Revolving L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.05(j) for so long as such LC Revolving L/C Exposure is outstanding;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Revolving L/C Exposure pursuant to clause (ii) aboveSection 2.22(c)(ii)(y), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.12 with respect to such Defaulting Lender’s LC Revolving L/C Exposure during the period such Defaulting Lender’s LC Revolving L/C Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Swingline Exposure or Revolving L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.22(c)(i), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.12 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesRevolving Facility Percentage; and
(v) if all or any portion of such Defaulting Lender’s LC Revolving L/C Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (iSection 2.22(c)(i) or (ii) above), then, without prejudice to any rights or remedies of any LC the Issuing Bank or any Lender hereunder, all Facility Fees facility fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Revolving L/C Commitment that was utilized by such LC Revolving L/C Exposure) and Letter of Credit fees all Revolving L/C Participation Fees payable under Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Revolving L/C Exposure shall be payable to the relevant LC applicable Issuing Bank until such Revolving L/C exposure is cash collateralized and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and/ or reallocated;
2.11.4 (d) so long as such any Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Revolving Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Facility Commitments of the non-Defaulting Lenders and/or Cash Collateral or cash collateral will be provided by the Borrower in accordance with Section 2.2.102.22(c), and participating interests in any such newly issued or increased Revolving Letter of Credit or 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 2.2.7 2.22(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(e) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender shall be applied at such time or times as may be determined by the Administrative Agent as follows: (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, to the payment on a bankruptcy event (as pro rata basis of any amounts owing by such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect Lender to any Person Issuing Bank or Swingline Lender, (iii) third, as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for Borrower may request (so long as such event shall continue 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, (iiiv) any Swingline Lender fourth, if so determined by the Administrative Agent or any LC requested by an Issuing Bank has a good faith belief that or Swingline Lender, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Lender has defaulted existing or future participating interest in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Revolving Letter of Credit, unless Borrower shall have Cash Collateralized (v) fifth, 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 Swingline Exposure breach of its obligations under this Agreement, (vi) sixth, so long as no Default or LC ExposureEvent 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 case may beBorrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement and (vii) seventh, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, provided, with respect to this clause (vii), that if such payment is (x) a prepayment of the principal amount of any Loans in respect of which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 2.11 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. 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 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, 2.05(j) shall have entered into arrangements with Borrower or such be deemed paid to and redirected by that Defaulting Lender, satisfactory to such Swingline and each Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. irrevocably consents hereto.
(f) In the event that the Administrative Agent, the Borrower, the each Issuing Bank and each Swingline Lenders and the LC Issuing Banks Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Revolving L/C Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Facility Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareRevolving Facility Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (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 2.4.1 the extent, and during the period in which, such Lender is a Defaulting Lender (except and the Borrower shall not be required to pay any such commitment fee that otherwise would have accrued and been required to have been paid to such Defaulting Lender to the extent allocable to (i) and during the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for period in which such Lender is a Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunderLender);
2.11.2 (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, two-thirds of the Lenders, two-thirds of the Lenders of a Class, the Required Lenders or the Required Lenders of a Class 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 7.99.02, except for any amendment or waiver described in Section 9.02(b)(i), except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii), (iii) or (iv)); provided that any amendmentwaiver, waiver amendment or consent modification requiring the consent of all Lenders, two-thirds of the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other Lenders or affected Lenders (as applicable) shall require the consent of such Defaulting Lender;.
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such a Multicurrency Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and such LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Multicurrency Lenders in accordance with their respective Proportionate Shares Applicable Multicurrency Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Multicurrency Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Multicurrency Commitments; provided that each , (y) no non-Defaulting Lender’s Multicurrency Credit Exposure will exceed such reallocation Lender’s Multicurrency Commitment, and (z) the conditions set forth in Section 4.02 are satisfied at such time (and unless the Borrower has notified the Administrative Agent at such time, the Borrower shall be given effect only if, deemed to have represented and warranted that such conditions are satisfied at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default existssuch 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 Banking Day three Business Days following notice by the Administrative Agent (x) firstAgent, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.04(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 any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.10(a) and Section 2.10(b) shall be adjusted in accordance with such non-Defaulting Multicurrency Lenders’ Proportionate Shares; andApplicable Multicurrency Percentages in effect after giving effect to such reallocation;
(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 LC the Issuing Bank or any Lender hereunder, all Facility Fees facility fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter letter of Credit credit fees payable under Section 2.4.2 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or Cash Collateralizedreallocated; and
2.11.4 (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 Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.
(d) so long as such any Multicurrency Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Multicurrency Commitments of the non-Defaulting Multicurrency Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.102.17(c), and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 2.17(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, Borrower, the Swingline Lenders Agent and the LC Issuing Banks each agrees Borrower agree in writing that a Defaulting Lender that is a Dollar Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then then, on the Swingline date of such agreement, such Lender shall purchase at par such of the Loans made to each Borrower of the other Lenders as the Administrative Agent shall determine may be necessary in order for the Lenders to hold such Loans in accordance with their applicable Dollar Percentage in effect immediately after giving effect to such agreement. In the event that the Administrative Agent, the Borrower and the Issuing Bank each agrees in writing that a Defaulting Lender that is a Multicurrency Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then, on the 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 of the Multicurrency Lenders shall be readjusted to reflect the inclusion of such Lender’s Multicurrency Commitment and on such date such Lender shall purchase at par such the portion of the Loans of the other Multicurrency Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Multicurrency Percentage in effect immediately after giving effect to such agreement.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Barings Capital Investment Corp), Senior Secured Revolving Credit Agreement (Barings BDC, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility (a) Fees set forth in Section 2.16 shall cease to accrue on the Commitment unfunded portion of the Commitments of such Defaulting Lender;
(b) To the extent permitted by applicable Law, any voluntary prepayment of Revolving Loans shall, if the Borrower so directs at the time of making such voluntary prepayment, be applied to the Revolving Loans of other Lenders as if such Defaulting Lender had no Revolving Loans outstanding and the Aggregate Exposure of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount in respect of the its Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder)Commitment were zero;
2.11.2 the Commitment and Revolving Credit (c) The Aggregate Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.910.01), except provided that (i) the Commitment(s) of any Defaulting Lender may not be increased waiver, amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other affected Lenders shall require the consent of such Defaulting Lender and in any event, no such amendment, modification, or waiver shall increase the Commitments or the principal amount of any Loans of such Defaulting Lender, extend the maturity date applicable thereto or decrease the rate of interest (including any commitment fees) payable in respect thereof without the consent of such Defaulting Lender;
2.11.3 if (d) If any Swingline Exposure or LC Exposure Letter of Credit Usage exists at the time such a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure such Letter of such Defaulting Lender Credit Usage shall be reallocated among the non-Revolving Lenders that are not Defaulting Lenders in accordance with their respective Proportionate Shares but Revolving Percentages but, in any case, only to the extent (x) the sum of the Outstanding Revolving Obligations of all non-Revolving Lenders that are not Defaulting Lenders’ Revolving Credit Exposures Lenders plus such Defaulting Lender’s Swingline Exposure and LC Exposure ratable participation in all Letter of Credit Usage does not exceed the total of the Revolving Commitments of all non-Revolving Lenders that are not Defaulting Lenders’ Commitments; provided that each Lenders and (y) the conditions set forth in Section 4.03 are satisfied at such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default existstime;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Business Day following notice by the Administrative Agent Agent, either (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure participation in all 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 2.2.10 a Letter of Credit Cash Collateral Account for so long as such LC Exposure Letter of Credit is outstandingoutstanding or (y) backstop such Letter of Credit Usage with a letter of credit reasonably satisfactory to the Issuing Lender;
(iii) if the Borrower Cash Collateralizes cash collateralizes or backstops any portion of such Defaulting Lender’s LC Exposure Letter of Credit Usage pursuant to clause this subsection (ii) aboved), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.06(j) with respect to such Defaulting Lender’s LC Exposure Letter of Credit Usage during the period such Defaulting Lender’s LC Exposure Letter of Credit Usage is Cash Collateralizedcash collateralized or backstopped;
(iv) if the LC Exposure Letter of Credit Usage attributable to the Defaulting Lenders that are Revolving Lenders is reallocated pursuant to this subsection (d), then the fees payable to the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.16(b) and Section 2.06(j) shall be adjusted in accordance with such the non-Defaulting Lenders’ Proportionate Sharesrespective Revolving Percentages to account for such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure participation in all Letter of Credit Usage is neither cash collateralized, backstopped nor reallocated nor Cash Collateralized pursuant to clause this subsection (i) or (ii) aboved), then, without prejudice to any rights or remedies of any LC the Issuing Bank Lenders or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 2.06(j) with respect to such Defaulting Lender’s LC Exposure remaining participation in all Letter of Credit Usage shall be payable to the relevant LC applicable Issuing Bank Lenders until and to the extent that such LC Exposure participation in all Letter of Credit Usage is reallocated backstopped, cash collateralized and/or Cash Collateralized; andreallocated.
2.11.4 so (e) So long as such any Revolving Lender is a Defaulting Lender, no Swingline Issuing Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, 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 cash collateral or backstop letters of credit will be provided by the Borrower in accordance with Section 2.2.10subsection (d) of this Section, and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders that are Revolving Lenders in a manner consistent with subsection (d)(i) of this Section 2.2.7 (and such Defaulting Lender Lenders shall not participate therein). If .
(if) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, Borrower, the Swingline Lenders Borrower and the LC Issuing Banks each agrees Lenders agree that a Defaulting Lender that is a Revolving Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure Letter of Credit Usage of the Revolving Lenders shall be readjusted to reflect the inclusion of such formerly Defaulting Lender’s Revolving Commitment and on such date such formerly Defaulting 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 formerly Defaulting Lender to hold such Revolving Loans in accordance with its Proportionate ShareRevolving Percentage.
Appears in 2 contracts
Samples: Credit Agreement (NBCUniversal Media, LLC), Credit Agreement (General Electric Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the Revolving Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.5(a);
2.11.2 (b) the Commitment and Revolving Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.910.1), except provided that (i) any waiver, amendment or modification requiring the Commitment(s) consent of any all Lenders or each affected Lender which affects such Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) any amendmentwaiver, waiver amendment or consent requiring modification increasing the amount or extending the expiration date of such Defaulting Lender’s Revolving Commitment, reducing the stated rate of any interest payable hereunder to such Defaulting Lender or extending the scheduled date of any payment thereof to such Defaulting Lender that would, absent this Section 2.20(b), require the consent of all the Lenders or each affected Lender that by its terms affects any such Defaulting Lender more adversely than the other affected Lenders pursuant to Section 10.1 shall require the consent of such Defaulting Lender;.
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Revolving Percentages but only to the extent (x)
(1) the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that Revolving Commitments and (2) each such reallocation shall be given effect only if, at the date the applicable Lender becomes a non-Defaulting Lender, no Inchoate Default or Event ’s Revolving Extensions of Default existsCredit plus its Revolving Percentage of such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed such non-Defaulting Lender’s Revolving Commitment and (y) the conditions set forth in Section 5.2 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower the Company shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Lender only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (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 2.2.10 8 for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) abovethis Section 2.20(c), Borrower the Company shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 3.3 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) abovethis Section 2.20(c), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.5(a) and Section 3.3 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesRevolving Percentages; and
(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 2.20(c), then, without prejudice to any rights or remedies of any LC the Issuing Bank Lender or any Lender hereunder, all Facility Fees facility fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and Letter letter of Credit credit fees payable under Section 2.4.2 3.3 with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank Lender until and to the extent that such LC Exposure is reallocated cash collateralized and/or Cash Collateralizedreallocated; and
2.11.4 (d) so long as such any Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, 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 cash collateral will be provided by Borrower the Company in accordance with Section 2.2.102.20(c), and participating interests in any such newly made Swingline Loan Loans or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 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 10.7 but excluding Section 10.1(d)) 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, 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 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 Letter of Credit, (iv) fourth, 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, (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 Revolving Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an 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 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, with respect to this clause (viii), that if such payment is (x) a prepayment of the principal amount of any Revolving Loans or Reimbursement Obligation in respect of which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to prepay the Revolving Loans of, and Reimbursement Obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Loans, or Reimbursement Obligations owed to, any Defaulting Lender. If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a parent company of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any the Swingline Lender or any LC the Issuing Bank 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, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC the Issuing BankLender, as the case may be, shall have entered into arrangements with Borrower the Company or such Lender, satisfactory to such the Swingline Lender or such LC the Issuing BankLender, as the case may be, to defease any risk to it in respect of such Lender hereunder; provided this paragraph shall not apply if the Swingline Exposure and LC Exposure of such Lender is reallocated among non-Defaulting Lenders and/or cash collateralized so that the Swingline Lender and Issuing Lender do not have any risk in respect of such Lender. In the event that the Administrative Agent, Borrowerthe Company, the Swingline Lenders Lender and the LC Issuing Banks Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its Proportionate ShareRevolving Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Lear Corp), Credit Agreement (Lear Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility (a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder4.1(a);
2.11.2 the (b) The Commitment and Revolving Credit Total Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders or the Required Lenders or each affected Lender have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.913.1), except ; provided that (i) any waiver, amendment or modification requiring the Commitment(sconsent of all Lenders pursuant to Section 13.1 (other than Section 13.1(a)(x)) or requiring the consent of each affected Lender pursuant to Section 13.1(a)(i) or (ix) shall require the consent of such Defaulting Lender (which for the avoidance of doubt would include any change to the Maturity Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default interest rates) and any increase in or extension of such Defaulting Lender’s Commitment) and (ii) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e., the Commitment Percentage of the Borrowing Base) of any a Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 if (c) If any Swingline Exposure or LC Letter of Credit Exposure exists at the time such a Lender becomes a Defaulting Lender then:
Lender, then (i) all or any part of the Swingline Exposure and LC such Letter of Credit Exposure of such Defaulting Lender shall will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders pro rata in accordance with their respective Proportionate Shares but only Commitment Percentages; provided that (A) each Non-Defaulting Lender’s Total Exposure may not in any event exceed the Commitment Percentage of the Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Banks or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion of the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Letter of Credit Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effectedso reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.15(c)(i) or otherwise, the Borrower shall within one Banking Day two (2) Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC applicable Issuing Banks Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) ), in accordance with the procedures set forth in Section 2.2.10 3.7 for so long as such LC Letter of Credit Exposure is outstanding;
, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to clause this Section 2.15(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is Cash Collateralized (iiand such fees shall be payable to the Issuing Banks), (iv) aboveif the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to this Section 2.15(c), then the Letter of Credit Fees payable for the account of the Lenders pursuant to Section 4.1(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Commitment Percentages and the Borrower shall not be required to pay any Letter of Credit fees Fees to such the Defaulting Lender pursuant to Section 2.4.2 4.1(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure during the period that such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate Shares; and
Exposure is reallocated, or (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 2.15(c), then, without prejudice to any rights or remedies of any LC Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit fees Fees payable under Section 2.4.2 4.1(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the relevant LC such Issuing Bank until and to the extent that such LC Letter of Credit Exposure is reallocated Cash Collateralized and/or Cash Collateralized; andreallocated;
2.11.4 so (d) So long as such any Lender is a Defaulting Lender, no Swingline Lender shall Issuing Bank will be required to fund issue any Swingline Loan and no LC new Letter of Credit or amend any outstanding Letter of Credit to increase the Stated Amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless each Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is reasonably satisfied that any exposure that would result from the related exposure and the to such Defaulting Lender’s then outstanding LC Exposure will be 100% Lender is eliminated or fully covered by the Commitments of the nonNon-Defaulting Lenders and/or or by Cash Collateral will be provided by Borrower Collateralization or a combination thereof in accordance with Section 2.2.10clause (c) above or otherwise in a manner reasonably satisfactory to such Issuing Bank, and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.2.7 2.15(c)(i) (and such Defaulting Lender Lenders shall not participate therein). ;
(e) If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders Administrative Agent and the LC each Issuing Banks each agrees Bank agree in writing in their discretion that a Lender that is a Defaulting Lender has adequately remedied all matters that caused such Lender should no longer be deemed to be a Defaulting Lender, then the Swingline Exposure Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and LC subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Letter of Credit Exposure of the Lenders such Lender reallocated pursuant to Section 2.15(c) shall be readjusted reallocated back to reflect the inclusion of such Lender; provided that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Xxxxxx’s Commitment having been a Defaulting Lender; and
(f) 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 Section 11 or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 13.8), 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 each 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 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 Borrower, 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; fifth, to the payment of any amounts owing to the Lenders, each Issuing Bank as a result of any final judgment of a court of competent jurisdiction obtained by any Lender, such date Issuing Bank against that Defaulting Lender as a result of that 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 final judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and seventh, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such Lender shall purchase at par such payment is a payment of the principal amount of any Loans of or Unpaid Drawings, such payment shall be applied solely to pay the relevant Loans of, and Unpaid Drawings owed to, the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section 2.15(f). Any payments, prepayments or other Lenders amounts paid or payable to a Defaulting Lender that are applied (other than Swingline Loansor held) as Administrative Agent to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to Section 3.7 shall determine may be necessary in order for such deemed paid to and redirected by that Defaulting Lender, and each Lender to hold such Loans in accordance with its Proportionate Shareirrevocably consents hereto.
Appears in 2 contracts
Samples: Credit Agreement (Infinity Natural Resources, Inc.), Credit Agreement (California Resources 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 Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.13(a);
2.11.2 (b) the Revolving Total Commitment and Revolving Credit Total Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.99.02); provided, except that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased or extended, or in the maturity case of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any an amendment, waiver or consent other modification requiring the consent of all the Lenders or each Lender affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) so long as no Event of Default shall have occurred and be continuing, all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders that are Revolving Lenders in accordance with their respective Proportionate Shares Applicable Revolving Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Total Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at Revolving Total Commitments and (y) the date the applicable Lender becomes a sum of any non-Defaulting Lender, no Inchoate Default or Event ’s Revolving Total Exposure plus its Applicable Revolving Percentage of Default existssuch Defaulting Lenders’ LC Exposure does not exceed such non-Defaulting Lender’s Revolving Total Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.05(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 any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.13(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.13(a) and (b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable Revolving 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 LC the Issuing Bank Banks or any other Revolving Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 2.13(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC each Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Total Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.102.21(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders that are Revolving Lenders in a manner consistent with Section 2.2.7 2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to a Lender Parent of any Person as to which any Revolving Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC the 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, no Swingline Lender shall be required to fund any Swingline Loan and no LC such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, the Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Total Commitment and on such date such Lender shall purchase at par such of the Revolving Total Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Total Loans in accordance with its Proportionate ShareApplicable Revolving Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Huntington Ingalls Industries, Inc.), Credit Agreement (Huntington Ingalls Industries, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.11(a);
2.11.2 (b) the 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 7.99.2); provided, that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, if such Defaulting Lender is an affected Lender, except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extendedas otherwise provided in Section 9.2, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without require the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring in accordance with the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderhereof;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages (for the purposes of such reallocation, such Defaulting Lender’s Commitment shall be disregarded in determining the Non-Defaulting Lenders’ respective Applicable Percentages) but only to the extent (x) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all nonNon-Defaulting Lenders’ Commitments; provided that Commitments and (y) after giving effect to any such reallocation, each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Non-Defaulting Lender, no Inchoate Default or Event of Default exists’s Revolving Credit Exposure does not exceed such Non-Defaulting Lender’s Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower the Borrowers shall within one Banking Day three (3) Business Days following written notice to the Lead Borrower by the Administrative Agent (x) first, prepay such Swingline Exposure that has not been reallocated and (y) second, Cash Collateralize cash collateralize for the benefit of the LC applicable Issuing Banks only Borrower’s obligations the Borrowers’ Obligations corresponding to such Defaulting Lender’s 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 2.2.10 2.5(i) for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower the Borrowers shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.11(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.11(a) and Section 2.11(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Proportionate Sharesreallocation; 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 LC Issuing Bank or any other Lender hereunder, all Facility Fees Letter of Credit fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 2.11(b) with respect to such Defaulting Lender’s unreallocated LC Exposure shall be payable to the relevant applicable Issuing Banks ratably based on the portion of such LC Exposure attributable to Letters of Credit issued by such Issuing Bank Bank, until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized pursuant to clause (i) or (ii) above; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by Borrower the Borrowers in accordance with this Section 2.2.102.22, and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with this Section 2.2.7 2.22 (and such Defaulting Lender shall not participate therein). If In the event that (ix) a bankruptcy event (as such term is defined in clause (d) direct or indirect parent company of a Lender becomes the definition subject of “Defaulting Lender”) with respect to a proceeding under any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur Debtor Relief Law following the date hereof Third Restatement Effective Date and for so long as such event proceeding under any Debtor Relief Law shall continue or (iiy) any the Swingline Lender or any LC 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 the Swingline Lender shall not be required to fund any Swingline Loan Loan, and no LC such Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower the Borrowers or such Lender, Lender satisfactory to such the Swingline Lender or such LC 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, Borrowerthe Borrowers, the Swingline Lenders Lender and the LC each Issuing Banks each Bank agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of any Borrower while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.
Appears in 2 contracts
Samples: Revolving Credit Agreement (CF Industries Holdings, Inc.), Revolving Credit Agreement (CF Industries Holdings, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility (a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder4.1(a);
2.11.2 the (b) The Commitment and Revolving Credit Total Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Majority Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.913.1), except ; provided that (i) any waiver, amendment or modification requiring the Commitment(sconsent of all Lenders pursuant to Section 13.1 (other than Section 13.1(a)(J)) or requiring the consent of each affected Lender pursuant to Section 13.1(a)(A) shall require the consent of such Defaulting Lender (which for the avoidance of doubt would include any change to the Maturity Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default interest rates) and any increase in such Defaulting Lender’s Commitment) and (ii) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e., the Commitment Percentage of the Borrowing Base) of any a Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 if (c) If any Swingline Exposure or LC Letter of Credit Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares but only to the extent the sum of all non-Defaulting 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; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default then all or Event any part of Default exists;
such Letter of Credit Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Commitment Percentages; provided that (i) each Non-Defaulting Lender’s Total Exposure may not in any event exceed the Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (ii) if neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the reallocation described in clause Borrower, the Administrative Agent, the Issuing Banks or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, to the extent that all or any portion (ithe “unreallocated portion”) above of the Defaulting Lender’s Letter of Credit Exposure cannot, or can only partially, be effectedso reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.18(c)(i) or otherwise, the Borrower shall within one Banking Day two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) secondAgent, Cash Collateralize for the benefit of the LC applicable Issuing Banks Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) ), in accordance with the procedures set forth in Section 2.2.10 3.8 for so long as such LC Letter of Credit Exposure is outstanding;
(iii) , if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to clause (iithis Section 2.18(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) abovewith respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is Cash Collateralized, if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to this Section 2.18(c), then the Letter of Credit Fees payable for the account of the Lenders pursuant to Section 4.1(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Commitment Percentages and the Borrower shall not be required to pay any Letter of Credit fees Fees to such the Defaulting Lender pursuant to Section 2.4.2 4.1(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure during the period that such Defaulting Lender’s LC Letter of Credit Exposure is reallocated, or if any Defaulting Lender’s Letter of Credit Exposure is neither Cash Collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is Collateralized nor reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to this Section 2.4.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate 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) above2.18(c), then, without prejudice to any rights or remedies of any LC Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit fees Fees payable under Section 2.4.2 4.1(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the relevant LC such Issuing Bank until and to the extent that such LC Letter of Credit Exposure is reallocated Cash Collateralized and/or Cash Collateralized; andreallocated;
2.11.4 so (d) So long as such any Lender is a Defaulting Lender, no Swingline Lender shall Issuing Bank will be required to fund issue any Swingline Loan and no LC 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 expiration date thereof, unless each Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is reasonably satisfied that any exposure that would result from the related exposure and the to such Defaulting Lender’s then outstanding LC Exposure will be 100% Lender is eliminated or fully covered by the Commitments of the nonNon-Defaulting Lenders and/or or by Cash Collateral will be provided by Borrower Collateralization or a combination thereof in accordance with Section 2.2.10clause (c) above or otherwise in a manner reasonably satisfactory to such Issuing Bank, and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.2.7 2.18(c)(i) (and such Defaulting Lender Lenders shall not participate therein). ;
(e) If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders Administrative Agent and the LC each Issuing Banks each agrees Bank agree in writing in their discretion that a Lender that is a Defaulting Lender has adequately remedied all matters that caused such Lender should no longer be deemed to be a Defaulting Lender, then the Swingline Exposure Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and LC subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Letter of Credit Exposure of the Lenders such Lender reallocated pursuant to Section 2.18(c) shall be readjusted reallocated back to reflect such Lender; provided that, except to the inclusion extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s Commitment having been a Defaulting Lender; and
(f) 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 XI or otherwise), 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 each 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 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 on the Borrower, 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; fifth, to the payment of any amounts owing to the Lenders and each Issuing Bank as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such date Issuing Bank against that Defaulting Lender as a result of that 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 that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and seventh, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such Lender shall purchase at par such payment is a payment of the principal amount of any Loans of or Unpaid Drawings, such payment shall be applied solely to pay the relevant Loans of, and Unpaid Drawings owed to, the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section 2.18(f). Any payments, prepayments or other Lenders amounts paid or payable to a Defaulting Lender that are applied (other than Swingline Loansor held) as Administrative Agent to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to Section 3.8 shall determine may be necessary in order for such deemed paid to and redirected by that Defaulting Lender, and each Lender to hold such Loans in accordance with its Proportionate Shareirrevocably consents hereto.
Appears in 2 contracts
Samples: Credit Agreement (Kimbell Royalty Partners, LP), Credit Agreement (Kimbell Royalty Partners, LP)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 (a) the Facility Fees Fee shall cease to accrue pursuant to Section 2.12(a) on the unused amount of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder)Lender;
2.11.2 (b) the 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 7.99.02), except ; provided that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent other modification requiring the consent of all the Lenders or each all Lenders affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders thereby shall require the consent of such Defaulting LenderLender in accordance with the terms hereof;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure (other than any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and, in the case of any Defaulting Lender that is a Swingline Lender, other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) 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 2.06(d) and 2.06(e)) shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages but only to the extent that (A) the sum of all nonNon-Defaulting 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 total sum of all nonNon-Defaulting Lenders’ Commitments; provided that each Commitments and (B) such reallocation shall be given effect only if, at does not result in the date the applicable Revolving Credit Exposure of any Non-Defaulting Lender becomes a exceeding such Non-Defaulting Lender, no Inchoate Default or Event of Default exists’s Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Business Day following notice by the Administrative Agent (xA) first, prepay the portion of such Defaulting Lender’s Swingline Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated and (yB) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to the portion of such Defaulting Lender’s LC Exposure (after giving effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) above) that has not been reallocated in accordance with the procedures set forth in Section 2.2.10 2.05(j) 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 any Letter of Credit fees LC Participation Fees to such Defaulting Lender pursuant to Section 2.4.2 2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure during the period for so long as such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if any portion of the LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) above, then the Letter of Credit fees LC Participation Fees payable to the Lenders pursuant to Section 2.4.2 2.11(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Proportionate Shares; andreallocation;
(v) if all or any portion of such Defaulting Lender’s LC Swingline Exposure is neither reallocated nor Cash Collateralized reduced pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any LC Issuing Bank Swingline Lender or any other Lender hereunder, all Facility Fees that otherwise would have been payable pursuant to Section 2.11(a) to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such Swingline Exposure) shall be payable to the Swingline Lenders (and allocated among them ratably based on the amount of such Defaulting Lender’s Swingline Exposure attributable to Swingline Loans made by each Swingline Lender) until and to the extent that was such Swingline Exposure is reallocated and/or reduced to zero; and
(vi) 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 pursuant to Section 2.11(a) to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such LC Exposure) and Letter of Credit fees LC Participation Fees payable under pursuant to Section 2.4.2 2.11(b) to such Defaulting Lender 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 Bank) until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, unless such Swingline Lender or LC Issuing Bankunless, as the case may bein each case, is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure Exposure, as applicable, will be 100% fully covered by the Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral will be cash collateral provided by the Borrower in accordance with Section 2.2.102.19(c), and participating interests in any newly made such funded Swingline Loan or in any newly issued such issued, amended, reviewed or increased extended Letter of Credit shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.2.7 2.19(c) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, the Borrower, the each Issuing Bank and each Swingline Lenders and the LC Issuing Banks Lender each agrees agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Hess Midstream Partners LP), Revolving Credit Agreement (Hess Midstream Partners LP)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility (a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder4.1(a);
2.11.2 the (b) The Commitment and Revolving Credit Total Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders or the Required Lenders or Borrowing Base Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.913.1), except ; provided that (i) the Commitment(s) of any Defaulting Lender may not be increased waiver, amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent modification requiring the consent of all Lenders pursuant to Section 13.1 (other than Section 13.1(x)) or requiring the Lenders or consent of each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders pursuant to Section 13.1(i) or (ix), shall require the consent of such Defaulting Lender (which for the avoidance of doubt would include any change to the Maturity Date applicable to such Defaulting Lender;, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default interest rates) and any increase in such Defaulting Lender’s Commitment) and (ii) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e., the Commitment Percentage of the Borrowing Base) of a Defaulting Lender may not be increased without the consent of such Defaulting Lender; 715000788 12406500715000788 12406500
2.11.3 if (c) If any Swingline Exposure or LC Letter of Credit Exposure exists at the time such a Lender becomes a Defaulting Lender then:
Lender, then (i) all or any part of the such Swingline Exposure and LC Letter of Credit Exposure of such Defaulting Lender shall will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders pro rata in accordance with their respective Proportionate Shares but only Commitment Percentages; provided that (A) each Non-Defaulting Lender’s Total Exposure may not in any event exceed the Commitment Percentage of the Loan Limit of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuers or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the sum “unreallocated portion”) of all non-Defaulting Lenders’ Revolving Credit Exposures plus such the Defaulting Lender’s Swingline Exposure and LC or Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effectedso reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.15(c)(i) or otherwise, the Borrower shall within one Banking Day two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks applicable Letter of Credit Issuer’ only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) ), in accordance with the procedures set forth in Section 2.2.10 3.8 for so long as such LC Letter of Credit Exposure is outstanding;
, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to clause (ii) aboveSection 2.15(c), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 4.1(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure during the period such Defaulting Lender’s LC Letter of Credit Exposure is Cash Collateralized;
, (iv) if the LC Letter of Credit Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.15(c), then the Letter of Credit fees Fees payable to for the account of the Lenders pursuant to Section 2.4.2 4.1(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate Shares; and
Commitment Percentages and the Borrower shall not be required to pay any Swingline or Letter of Credit Fees to the Defaulting Lender pursuant to Section 4.1(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (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 2.15(c), then, without prejudice to any rights or remedies of any LC Issuing Bank the Letter of Credit Issuer or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit fees Fees payable under Section 2.4.2 4.1(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the relevant LC Issuing Bank Letter of Credit Issuer until and to the extent that such LC Letter of Credit Exposure is reallocated Cash Collateralized and/or Cash Collateralized; andreallocated;
2.11.4 so (d) So long as such any Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC Issuing Bank shall Letter of Credit Issuer will be required to issue, amend or increase issue any new Letter of CreditCredit or amend any outstanding Letter of Credit to increase the Stated Amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless such Swingline Lender or LC Issuing Bank, as the case may be, Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the related exposure and the to such Defaulting Lender’s then outstanding LC Exposure will be 100% Lender is eliminated or fully covered by the Commitments of the nonNon-Defaulting Lenders and/or or by Cash Collateral will be provided by Borrower Collateralization or a combination thereof in accordance with Section 2.2.10clause (c) above or otherwise in a manner reasonably satisfactory to the Letter of Credit Issuer, and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.2.7 2.15(c)(i) (and such Defaulting Lender Lenders shall not participate therein). ; and
(e) If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender isBorrower, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders Lender and the LC Issuing Banks each agrees Letter of Credit Issuer agree in writing in their discretion that a Lender that is a Defaulting Lender has adequately remedied all matters that caused such Lender should no longer be deemed to be a Defaulting Lender, then the Swingline Exposure Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and LC subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Letter of Credit Exposure of the Lenders such Lender reallocated pursuant to Section 2.15(c) shall be readjusted reallocated back to reflect such Lender; provided that, except to the inclusion extent 715000788 12406500715000788 12406500 otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s Commitment having been a Defaulting Lender.
(f) 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 Section 11 or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 13.8), 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 each Letter of Credit Issuer and the Swingline Lender 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 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 Borrower, 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; fifth, to the payment of any amounts owing to the Lenders, the Letter of Credit Issuers or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such date Letter of Credit Issuer or the Swingline Lender against that Defaulting Lender as a result of that 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 that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and seventh, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such Lender shall purchase at par such payment is a payment of the principal amount of any Loans of or Unpaid Drawings, such payment shall be applied solely to pay the relevant Loans of, and Unpaid Drawings owed to, the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section 2.15(f). Any payments, prepayments or other Lenders amounts paid or payable to a Defaulting Lender that are applied (other than Swingline Loansor held) as Administrative Agent to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to Section 3.8 shall determine may be necessary in order for such deemed paid to and redirected by that Defaulting Lender, and each Lender to hold such Loans in accordance with its Proportionate Shareirrevocably consents hereto.
Appears in 2 contracts
Samples: Fifth Amendment and Waiver Agreement (Samson Resources Corp), Fifth Amendment and Waiver Agreement (Samson Resources Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility (i) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and 3.05(a).
(ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to The Commitment, the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 Maximum Credit Amount and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.912.02); provided that any waiver, except that (i) the Commitment(s) of any Defaulting Lender may not be increased amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender;; and provided, further, that any redetermination or affirmation of the 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; provided, that, subject to Section 12.19, no such reallocation will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank or any Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender.
2.11.3 if (iii) If any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(iA) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares 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 (1) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all nonNon-Defaulting Lenders’ CommitmentsCommitments and (2) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure plus its reallocated share of such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment; provided further that, subject to Section 12.19, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that each such reallocation shall be given effect only if, at the date the applicable Lender becomes having become a Defaulting Lender, no Inchoate Default or Event including any claim of Default existsa Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) ), or otherwise backstop such LC Exposure in such amounts and pursuant to such arrangements as are satisfactory to the Issuing Bank in its sole discretion, in accordance with the procedures set forth in Section 2.2.10 2.08(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 or backstops any portion of such Defaulting Lender’s LC Exposure pursuant to clause (iiB) above, then the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 3.05(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized or otherwise backstopped;
(ivD) if the LC Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (iA) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 3.05(a) and Section 3.05(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate SharesApplicable Percentages; and
(vE) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized nor backstopped pursuant to clause (iA) or (iiB) above, then, without prejudice to any rights or remedies of any LC the Issuing Bank or any other Lender hereunder, all Facility Fees commitment fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter letter of Credit credit fees payable under Section 2.4.2 3.05(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized or otherwise backstopped; and
2.11.4 so (iv) So long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral cash collateral or other backstop arrangement will be provided by the Borrower in accordance with Section 2.2.104.03(c), and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.2.7 4.03(c)(iii)(A) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event or a Bail-In Action with respect to any Person as to which a Lender Parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof Effective Date and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 creditcontinue, no Swingline Lender shall be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, Borrower, the Swingline Lenders Borrower and the LC Issuing Banks Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender and such Lender is no longer a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date date, if necessary, such Lender shall purchase at par such of the Loans and/or participations in Letters of Credit of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans and/or participations in Letters of Credit in accordance with its Proportionate ShareApplicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Sitio Royalties Corp.), Credit Agreement (Desert Peak Minerals 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:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.12(a);
2.11.2 (b) the unused Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Required Revolving Lenders, as applicable, have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.99.02), except ; provided that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased in the case of an amendment, waiver or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without other modification requiring the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each Lender affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby under Section 9.02;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) so long as no Default has occurred and is continuing: (1) all or any part of the Swingline Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Dollar Tranche Lenders in accordance with their respective Dollar Tranche Percentages (after giving effect to the reallocation provisions of Section 2.05(d)) but only to the extent (A) the sum of all non-Defaulting 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 in respect of any Class does not exceed such non-Defaulting Lender’s Dollar Tranche Commitment in respect of such Class; and (2) 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 Proportionate Shares Dollar Tranche Percentages (after giving effect to the reallocation provisions of Section 2.06(k)) but only to the extent (A) the sum of all non-Defaulting Lenders’ Dollar Tranche Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Dollar Tranche LC Exposure does not exceed the total of all non-Defaulting Dollar Tranche Lenders’ CommitmentsDollar Tranche Commitments and (B) each non-Defaulting Lender’s Dollar Tranche Revolving Credit Exposure in respect of any Class does not exceed such non-Defaulting Lender’s Dollar Tranche Commitment in respect of such Class; provided that each and all or any part of the Multicurrency Tranche LC Exposure of such reallocation Defaulting Lender shall be given effect reallocated among the non-Defaulting Multicurrency Tranche Lenders in accordance with their respective Multicurrency Tranche Percentages but only if, at to the date extent (E) the applicable Lender becomes a sum of all non-Defaulting Lenders’ Multicurrency Tranche Revolving Credit Exposures plus such Defaulting Lender, no Inchoate Default or Event ’s Multicurrency Tranche LC Exposure does not exceed the total of Default existsall non-Defaulting Multicurrency Tranche Lenders’ Multicurrency Tranche Commitments and (F) each non-Defaulting Lender’s Multicurrency Tranche Revolving Credit Exposure in respect of any Class does not exceed such non-Defaulting Lender’s Multicurrency Tranche Commitment in respect of such Class;
(ii) if the reallocation reallocations described in clause (i) above cannot, or can only partially, be effected, the respective Borrower shall within one Banking (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Bank only the respective Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.06(j) 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 any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period (and to the extent) such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (iii) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable Percentages (after giving effect to the reallocation provisions of Sections 2.05(d) and 2.06(k)); 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 LC the Issuing Bank or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, 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 cash collateral will be provided by the Borrower in accordance with Section 2.2.102.22(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 2.2.7 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a Holding Company of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof Effective Date and for so long as such event shall continue or (ii) any the Swingline Lender or any LC 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, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, reasonably satisfactory to such the Swingline Lender or such LC 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, the Borrower, the Swingline Lenders Issuing Bank and the LC Issuing Banks Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such LenderXxxxxx’s Commitment and on such date such Lender shall purchase at par such of the Dollar Tranche Revolving Loans of the other Lenders any Class (other than Swingline Loans) and/or Multicurrency Tranche Revolving Loans of any Class of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable 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 that Lender was a Defaulting Lender; provided, further, that, subject to Section 9.19, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Xxxxxx’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Endo, Inc.), Credit Agreement (Endo, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.12(a);
2.11.2 (b) the Commitment and Revolving Credit Exposure Multi-Year Facility Exposures of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.98.02); provided, except that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased in the case of an amendment, waiver or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without other modification requiring the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each Lender affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Multi-Year Facility Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, Commitments and (y) the conditions set forth in Section 4.02 are satisfied at the date the applicable time of such reallocation. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender becomes arising from that Lender having become a Defaulting Lender, no Inchoate Default or Event including any claim of Default existsa non-Defaulting Lender as a result of such non-Defaulting 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 Banking Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) aboveabove and any Cash Collateral provided by such Defaulting Lender) in accordance with the procedures set forth in Section 2.2.10 2.05(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 any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.12(b) 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 clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable 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 LC Issuing Bank or any other Lender hereunder, all Facility Fees facility fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter letter of Credit credit fees payable under Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank Banks, on a pro rata basis, until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Multi-Year Facility Commitments of the non-Defaulting Lenders and/or Cash Collateral in the full amount of the related exposure and the Defaulting Lender’s then outstanding LC Exposure as of such date plus any accrued and unpaid interest thereon will be provided by the Borrower in accordance with Section 2.2.102.20(c), and participating interests in Swingline Exposure related to any newly made Swingline Loan or LC Exposure related to any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which the Parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any the Issuing Bank or the Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC (in each case, an “Affected Lender”) the Issuing Bank shall not be required to issue, amend or increase any Letter of CreditCredit and the Swingline Lender shall not be required to fund any Swingline Loan, unless Borrower shall have Cash Collateralized such the Issuing Bank or the Swingline Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such LenderAffected Lender or the other Lenders, satisfactory to such the Issuing Bank or the Swingline Lender or such LC Issuing BankLender, as the case may be, to defease any risk to it in respect of such Affected Lender hereunder, which the parties agree may include the Issuing Bank’s or the Swingline Lender’s, as the case may be, satisfaction that the related exposure and such Affected Lender’s then outstanding Swingline Exposure or LC Exposure will be 100% covered by the Multi-Year Facility Commitments of Lenders that are not either Defaulting Lenders or Affected Lenders, and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among the Lenders which are not Defaulting Lenders or Affected Lenders in a manner consistent with Section 2.20(c) (in which case, such Affected Lender shall not participate therein) and/or Cash Collateral will be provided by the Borrower in accordance with Section 2.20(c) in the full amount of the Swingline Exposure and the LC Exposure of the Affected Lender as of such date plus any accrued and unpaid interest thereon. In the event that the Administrative Agent, the Borrower, the Swingline Lenders Lender and the LC each Issuing Banks Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (National Fuel Gas Co), Credit Agreement (National Fuel Gas Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of any Revolving Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder3.3(a);
2.11.2 (b) the Commitment Commitments and Revolving Total Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders, the Majority Facility Lenders, Required Revolving Lenders, or any other group of Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.910.2), except ; provided that (i) the Commitment(s) of any Defaulting Lender may not be increased waiver, amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other affected Lenders shall require the consent of such Defaulting Lender, and (ii) any waiver, amendment or modification that would increase the Commitments of such Lender, or postpone the final maturity date of any payment of principal owed to such Lender, shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting non‑Defaulting Lenders in accordance with their respective Proportionate Shares but only Applicable Percentages to the extent (A) immediately after giving effect thereto, the sum of all non-Defaulting non‑Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does would not exceed the total of all non-Defaulting non‑Defaulting Lenders’ Commitments; provided that each Revolving Commitments and (B) the conditions set forth in Section 5.2 are satisfied at such reallocation time (for the avoidance of doubt, no Lender’s Revolving Commitment shall be given effect only if, at the date the applicable Lender becomes changed as a Defaulting Lender, no Inchoate Default or Event result of Default existssuch reallocation);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) firstAgent, prepay such Swingline Exposure and (y) secondthe Borrower shall, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above, (A) first, prepay such Swingline Exposure and (B) second, cash collateralize such Defaulting Lender’s LC Exposure in accordance with the procedures set forth in Section 2.2.10 2.9(i) for so long as such LC Exposure is outstanding;
(iii) if to the extent the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) abovethis Section 2.12(c), the Borrower shall not be required to pay any Letter fees for the account of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 3.3(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders such non‑Defaulting Lender is reallocated pursuant to clause (i) abovethis Section 2.12(c), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 3.3(b) shall be adjusted in accordance with such non-Defaulting non‑Defaulting Lenders’ Proportionate SharesApplicable 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 LC Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10, and participating interests in any 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 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary promptly notify the Lenders of any reallocation described in order for such Lender to hold such Loans in accordance with its Proportionate Share.this Section 2.12(c);
Appears in 2 contracts
Samples: Credit Agreement (Gci Liberty, Inc.), Credit Agreement (Gci, LLC)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting LenderLender hereunder, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.8(a);
2.11.2 (b) the Commitment Commitments and the Total Revolving Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.911.1), except ; provided that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased or extended, or in the maturity case of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any an amendment, waiver or consent other modification requiring the consent of all the Lenders each Lender or each Lender affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby;
2.11.3 (c) if any Swingline Exposure Loan or LC Exposure exists Letter of Credit is outstanding at the time such Lender becomes a Defaulting Lender then:
(i) unless a Default shall have occurred and be continuing, all or any part of the Swingline Exposure Participation Amount and LC Exposure Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Alternative Currency Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Alternative Currency Revolving Extensions of Credit Exposures plus such Defaulting Lender’s Swingline Exposure Participation Amount and LC Exposure does Obligations do not exceed the total of all non-Defaulting Lenders’ Alternative Currency Revolving Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure Participation Amount and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 3.10 for so long as such LC Exposure is Obligations are outstanding;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Alternative Currency Revolving Percentage of the LC Exposure Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.8(c) with respect to such Defaulting Lender’s Alternative Currency Revolving Percentage of the LC Exposure Obligations during the period such Defaulting Lender’s LC Exposure is Cash CollateralizedObligations are cash collateralized;
(iv) if the LC Exposure Obligations of the non-Defaulting Lenders is are reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.8(a) and Section 2.8(c) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesAlternative Currency Revolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure Obligations 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 LC the Issuing Bank Lender or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.8(c) with respect to such Defaulting Lender’s LC Exposure Obligations shall be payable to the relevant LC Issuing Bank Lender until and to the extent that such LC Exposure is Obligations are reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure Obligations will be 100% covered by the Alternative Currency Revolving Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.102.26(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Alternative Currency Revolving Lenders in a manner consistent with Section 2.2.7 2.26(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a Parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof Closing Date and for so long as such event shall continue or (ii) any the Swingline Lender or any LC the Issuing Bank 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, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC the Issuing BankLender, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to such the Swingline Lender or such LC the Issuing BankLender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lenders Lender and the LC Issuing Banks Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure Participation Amount and LC Exposure Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Alternative Currency Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareRevolving Percentage.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Davita Healthcare Partners Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the Commitment unfunded portion of the Commitments of such Defaulting Lender pursuant to Section 2.4.1 5.3;
(except to the extent allocable to (ib) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Commitment and Revolving Credit Exposure Commitment of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Requisite Lenders or the Requisite Facility Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.9)14.7, except that the Defaulting Lender’s consent shall be required in connection with any increase or extension in such Defaulting Lender’s Revolving Credit Commitment or Term Commitments pursuant to Section 14.7(b)(ii), any amendment pursuant to Section 14.7(b)(iii) or (iiv) affecting its Loans or pursuant to Section 14.7(b)(iv) with respect to postponing the Commitment(s) of any Defaulting Lender may not be increased or extended, Revolving Credit Termination Date or the maturity of Term Maturity Date only), provided that any of its Loans may not be extendedwaiver, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver amendment or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure Loans or LC Exposure exists Letters of Credit exist at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such liability with respect to Swingline Exposure Loans and LC Exposure Letters of such Defaulting Lender Credit shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Pro Rata Share for the Revolving Credit Facility but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures Obligations plus such Defaulting Lender’s Pro Rata Share of Swingline Exposure Loans and LC Exposure Letters of Credit does not exceed the total of all non-Defaulting Lenders’ CommitmentsRevolving Credit Commitments (it being understood that under no circumstance shall any Lender at any time be liable for any amounts in excess of its Revolving Credit Commitment), and (y) the conditions set forth in Section 6.2(a) and Section 6.2(b) are satisfied at such time; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Day five (5) Business Days following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Pro Rata Share of the Swingline Exposure Loans and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure Pro Rata Share of Letters of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 3.4 for so long as such LC Exposure is Letters of Credit are outstanding;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure Pro Rata Share of the Letters of Credit pursuant to clause (ii) aboveSection 14.25(c), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 with respect to such Defaulting Lender’s LC Exposure Pro Rata Share of the Letters of Credit during the period such Defaulting Lender’s LC Exposure Pro Rata Share of the Letters of Credit is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure Pro Rata Share of the non-Defaulting Lenders with respect to Letters of Credit is reallocated pursuant to clause (i) aboveSection 14.25(c), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 this Agreement shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate Pro Rata Shares; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure Pro Rata Share of Letters of Credit is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (i) or (ii) aboveSection 14.25(c), then, without prejudice to any rights or remedies of any LC the Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Revolving Credit Commitment that was utilized by such LC ExposurePro Rata Share of Letters of Credit) and Letter of Credit fees payable under Section 2.4.2 with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure Pro Rata Share of Letters of Credit is reallocated cash collateralized and/or Cash Collateralizedreallocated; and
2.11.4 (d) so long as such any Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.1014.25(c), and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 14.25(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a Parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any the Swingline Lender or any LC 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, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to such the Swingline Lender or such LC 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, the Borrower, the Swingline Lenders Issuing Bank and the LC Issuing Banks Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure Pro Rata Shares of the Revolving Credit Lenders with respect to Swingline Loans and Letters of Credit shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Pro Rata Share.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Washington Prime Group Inc.), Revolving Credit and Term Loan Agreement (Washington Prime Group Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for then, so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) commitment fees shall cease to accrue on the unused portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.13(a);
2.11.2 (b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders, the Required Revolving Lenders or other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.99.2); provided, that this paragraph shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby if such amendment, waiver or modification would adversely affect such Defaulting Lender compared to other similarly affected Lenders; provided, further, that no amendment, waiver or modification that would require the consent of a Defaulting Lender under clause (1), except that (i2), (3) the Commitment(sor (6) of any Defaulting Lender Section 9.2(b) may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case made without the consent of such Defaulting Lender and Lender.
(iic) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender Lender, then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages in respect of the Revolving Credit Facility but only to the extent (A) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures Exposure plus such Defaulting Lender’s Swingline Exposure and LC Exposure attributable to Letters of Credit does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that Revolving Credit Commitments and (B) the Revolving Credit Exposure of each non-Defaulting Lender after giving effect to such reallocation shall be given effect only if, at does not exceed the date the applicable Lender becomes a Revolving Credit Commitment of such non-Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower shall the Revolver Borrowers shall, without prejudice to any other right or remedy available to it hereunder or under applicable Requirements of Law, within one Banking Day three (3) Business Days following notice by the Revolver Administrative Agent (x) firstAgent, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of each applicable Issuing Bank only the LC Issuing Banks only applicable Revolver Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.7(j) for so long as such LC Exposure is outstandingoutstanding or make other arrangements reasonably satisfactory to the Revolver Administrative Agent and to the applicable Issuing Bank with respect to such LC Exposure and obligations to fund participations;
(iii) if Borrower Cash Collateralizes the Revolver Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower the such Revolver Borrowers shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.13(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized except to the extent of such fees that became due and payable by any such Revolver Borrower prior to the date such Lender became a Defaulting Lender (it being understood that any cash collateral provided pursuant to this Section 2.22(c) shall be released promptly following the termination of the Defaulting Lender status of the applicable Lender);
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.13(a) and Section 2.13(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate Shares; andApplicable Percentages;
(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 LC Issuing Bank or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 2.13(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC each applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; andcash collateralized;
2.11.4 (d) so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is reasonably satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by Borrower the applicable Revolver Borrowers in accordance with Section 2.2.102.22(c), and participating interests in any 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 2.2.7 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If ; and
(ie) if a bankruptcy event (as such term is defined in clause (d) Defaulting Lender has Revolving Credit Commitments, for purposes of computing the amount of the definition obligation of “each non-Defaulting Lender”) with respect Lender to any Person as to which any Lender isacquire, directly refinance or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC Issuing Bank has a good faith belief that any Lender has defaulted fund participations in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter Letters of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Applicable Percentage of each non-Defaulting Lender or such LC Issuing Bank, as the case may bewith a Revolving Credit Commitment, shall have entered into arrangements with Borrower or such be computed without giving effect to the Revolving Credit Commitment of the Defaulting Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Revolver Administrative Agent, Borrower, the Swingline Lenders Revolver Borrowers and the LC each Issuing Banks Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such date such Lender shall purchase at par (plus such amount, if any, that would otherwise be reimbursable by the Borrowers pursuant to Section 2.18 as a result of such purchase on such date) such of the Loans of the other Lenders (other than Swingline Loans) Lenders, if any, as the Revolver Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage, and such Lender shall then cease to be a Defaulting Lender with respect to subsequent periods unless such Lender shall thereafter become a Defaulting Lender. Notwithstanding the fact that any Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, (x) no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Revolver Borrowers while such Lender was a Defaulting Lender and (y) except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Herbalife Nutrition Ltd.), Credit Agreement (Herbalife Nutrition 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 Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.13(a);
2.11.2 (b) the Revolving Total Commitment and Revolving Credit Total Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.99.02); provided, except that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased or extended, or in the maturity case of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any an amendment, waiver or consent other modification requiring the consent of all the Lenders or each Lender affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) so long as no Event of Default shall have occurred and be continuing, all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders that are Revolving Lenders in accordance with their respective Proportionate Shares Applicable Revolving Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Total Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at Revolving Total Commitments and (y) the date the applicable Lender becomes a sum of any non-Defaulting Lender, no Inchoate Default or Event ’s Revolving Total Exposure plus its Applicable Revolving Percentage of Default existssuch Defaulting Lenders’ LC Exposure does not exceed such non-Defaulting Lender’s Revolving Total Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.05(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 any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.13(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.13(a) and (b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable Revolving 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 LC the Issuing Bank Banks or any other Revolving Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 2.13(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC each Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Total Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.102.21(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders that are Revolving Lenders in a manner consistent with Section 2.2.7 2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to a Lender Parent of any Person as to which any Revolving Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC the 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, no Swingline Lender shall be required to fund any Swingline Loan and no LC such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, the Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Total Commitment and on such date such Lender shall purchase at par such of the Revolving Total Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Total Loans in accordance with its Proportionate ShareApplicable Revolving Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Huntington Ingalls Industries, Inc.), Credit Agreement (Huntington Ingalls Industries, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) commitment fees pursuant to Section 2.09(a) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to extent, and during the period, such Lender is a Defaulting Lender; and
(ib) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Commitment and Revolving Credit Exposure of such Defaulting Lender BUSINESS.29745768.5 shall not be included in determining whether all Lenders, two-thirds of the Lenders, two-thirds of the Lenders of a Class, the Required Lenders or the Required Lenders of a Class 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 7.99.02, except for any amendment or waiver described in Section 9.02(b)(i), except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) or (iii)); provided that any amendmentwaiver, waiver amendment or consent modification requiring the consent of all Lenders, two-thirds of the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other Lenders or affected Lenders (as applicable) shall require the consent of such Defaulting Lender;
2.11.3 if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares but only to the extent the sum of all non-Defaulting 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; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower shall within one Banking Day following notice by Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 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 clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate 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 LC Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10, and participating interests in any 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 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, Borrower, the Swingline Lenders Agent and the LC Issuing Banks Borrower each agrees in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then then, on the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion date of such Lender’s Commitment and on such date agreement, such Lender shall purchase at par such the portion of the Loans of the other Lenders (and take such other than Swingline Loans) actions as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage in effect immediately after giving effect to such agreement, whereupon such Lender will cease to be a Defaulting Lender; provided that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Xxxxxx’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 Section 7.01 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, 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; third, 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; fourth, to the payment of any amounts owing to Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, 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 sixth, 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 in respect of which such Defaulting Lender has not fully funded its appropriate share; and (y) notwithstanding anything to the contrary contained herein, such Loans were made 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 all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held by Lenders pro rata in accordance with the Revolving Credit Exposures hereunder. Any payments, prepayments or other amounts paid or payable to BUSINESS.29745768.5 a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this Section 2.16 are hereby deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 2 contracts
Samples: Senior Secured Revolving Credit Agreement (BlackRock TCP Capital Corp.), Senior Secured Revolving Credit Agreement (BlackRock TCP Capital Corp.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.12(a);
2.11.2 (b) the 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 the Majority in Interest of the Term Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.99.02); provided, except that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased in the case of an amendment, waiver or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without other modification requiring the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each Lender affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderthereby;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) so long as no Default has occurred and is continuing: all or any part of the Swingline 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 (A) the sum of all non-Defaulting 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 Proportionate Shares 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 Swingline Exposure and Dollar Tranche LC Tranche Exposure does not exceed the total of all non-Defaulting Dollar Tranche Lenders’ CommitmentsDollar 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; provided that each and all or any part of the Multicurrency Tranche LC Exposure of such reallocation Defaulting Lender shall be given effect reallocated among the non-Defaulting Multicurrency Tranche Lenders in accordance with their respective Multicurrency Tranche Percentages but only if, at to the date extent (E) the applicable Lender becomes a sum of all non-Defaulting Lenders’ Multicurrency Tranche Revolving Credit Exposures plus such Defaulting Lender, no Inchoate Default or Event ’s Multicurrency Tranche LC Tranche Exposure does not exceed the total of Default existsall non-Defaulting Multicurrency Tranche Lenders’ Multicurrency Tranche Commitments and (F) each non-Defaulting Lender’s Multicurrency Tranche Revolving Credit Exposure does not exceed such non-Defaulting Lender’s Multicurrency Tranche Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower the Company shall within one Banking (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Bank only Borrower’s the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.06(j) for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower the Borrowers shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Sections 2.12(a) and Section 2.4.2 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable 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 LC the Issuing Bank or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, 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 cash collateral will be provided by Borrower the Company in accordance with Section 2.2.102.24(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 in a manner consistent with Section 2.2.7 2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a Parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof Original Effective Date and for so long as such event shall continue or (ii) any the Swingline Lender or any LC 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, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC the Issuing Bank, as the case may be, shall have entered into arrangements with Borrower the Company or such Lender, satisfactory to such the Swingline Lender or such LC 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, Borrowerthe Company, the Swingline Lenders Lender and the LC Issuing Banks Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such 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 Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (LKQ Corp), Amendment and Restatement Agreement (LKQ Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder4.1(a);
2.11.2 (b) the Commitment of and the 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 (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.913.1), except ; provided that (i) any waiver, amendment or modification requiring the Commitment(s) consent of any all Lenders or each affected Lender which affects such Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent Commitment of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require may not be increased or extended without the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC Letter of Credit Exposure exists at the time such a Lender becomes a Defaulting Lender then:
Lender, then (i) all or any part of the Swingline Exposure and LC such Letter of Credit Exposure of such Defaulting Lender shall and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders pro rata in accordance with their respective Proportionate Shares but only Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (B) subject to Section 13.21, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, (ii) to the extent that all or any portion (the sum “unreallocated portion”) of all non-Defaulting Lenders’ Revolving Credit Exposures plus such the Defaulting Lender’s Letter of Credit Exposure and Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effectedso reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(c)(i) above or otherwise, the Borrower shall within one Banking Day two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 2.2.10 3.8 for so long as such LC Letter of Credit Exposure is outstanding;
, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to clause (ii) abovethe requirements of this Section 2.16(c), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 4.1(c) with respect to such Defaulting Lender’s LC Letter of Credit Exposure during the period such Defaulting Lender’s LC Letter of Credit Exposure is Cash Collateralized;
, (iv) if the LC Letter of Credit Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) abovethe requirements of this Section 2.16(c), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 4.1(c) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate Shares; and
Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or (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) abovethe requirements of this Section 2.16(c), then, without prejudice to any rights or remedies of any LC Issuing Bank the Letter of Credit Issuer or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 4.1(c) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the relevant LC Issuing Bank Letter of Credit Issuer until and to the extent that such LC Letter of Credit Exposure is reallocated Cash Collateralized and/or Cash Collateralized; andreallocated;
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall (d) (i) the Letter of Credit Issuer will not be required to fund issue any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any new Letter of CreditCredit 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 Swingline Lender or LC Issuing Bank, as the case may be, Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the related exposure and the to such Defaulting Lender’s then outstanding LC Exposure will be 100% Lender is eliminated or fully covered by the Revolving Credit Commitments of the nonNon-Defaulting Lenders and/or or by Cash Collateral will be provided by Borrower Collateralization or combination thereof in accordance with the requirements of Section 2.2.10, and participating interests 2.16(c) above or otherwise in any newly made Swingline Loan or any newly issued or increased a manner reasonably satisfactory to the Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Share.Issuer; and
Appears in 2 contracts
Samples: Incremental Agreement to Credit Agreement (Snap One Holdings Corp.), Incremental Agreement to Credit Agreement (Snap One Holdings Corp.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender or be payable for the benefit of such Defaulting Lender pursuant to Section 2.4.1 2.6(a);
(except to the extent allocable to (ib) the outstanding unpaid principal amount of the Term Loans and the Revolving Loans funded by it and Commitments (iior if the Revolving Commitments have been terminated, the Revolving Extensions of Credit) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.910.1), except provided that (i) the Commitment(s) of any Defaulting Lender may not be increased waiver, amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC L/C Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC L/C Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 9 for so long as such LC L/C Exposure is outstanding;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 3.3(a) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesRevolving Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC L/C 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 LC the Issuing Bank Lender or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 3.3(a) with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the relevant LC Issuing Bank Lender until and to the extent that such LC L/C Exposure is reallocated and/or Cash Collateralized; andcash collateralized;
2.11.4 (d) so long as such Lender is a Defaulting Lender, no Swingline the Issuing Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC L/C Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.102.21(c), and participating interests in any 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 2.2.7 2.21(c)(i) (and such Defaulting Lender shall not participate therein). If ; 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) 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) a bankruptcy event (as first, to the payment of any amounts owing by such term is defined in clause (d) of Defaulting Lender to the definition of “Defaulting Lender”) with respect to any Person as to which any Lender isAdministrative Agent hereunder, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) second, to the funding of any Swingline Lender or any LC Issuing Bank has a good faith belief that any Loan in respect of which such Defaulting Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, no Swingline Lender shall be required failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (iii) third, to the reimbursement of the Issuing Lender pursuant to Section 3.4(a) in respect of any Swingline Loan and no LC unreimbursed portion of any payment made by the Issuing Bank shall be required to issue, amend or increase Lender under any Letter of Credit, unless Borrower shall have Cash Collateralized (iv) fourth, if so determined by the Administrative Agent and the Borrower, held in such Lender’s Swingline Exposure or LC Exposure, account as cash collateral for future funding obligations of the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Defaulting Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of any Loans under this Agreement and (v) fifth, to such Defaulting Lender hereunderor as otherwise directed by a court of competent jurisdiction. In the event that the Administrative Agent, Borrower, the Swingline Lenders Borrower and the LC Issuing Banks Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC L/C Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareRevolving Percentage.
Appears in 2 contracts
Samples: Credit Agreement (RE/MAX Holdings, Inc.), Credit Agreement (RE/MAX Holdings, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Committed Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Committed Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) The Unused Fee shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to 2.05 if it remains a Defaulting Lender at the extent allocable to (i) the outstanding principal amount time of any reduction of the Revolving Loans funded by it and Aggregate Commitment pursuant to Section 2.03.
(iib) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the The Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.910.01), except provided that (i) the Commitment(s) of any Defaulting Lender may not be increased waiver, amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:.
(ic) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares but only to the extent the sum of all non-Defaulting 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; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or So long as an Event of Default exists;
(ii) if the reallocation described in clause (i) above cannotTermination has not occurred and is continuing, or can only partially, be effected, Borrower shall within one Banking Day following notice by Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower shall not be required to pay any Letter of Credit fees amount payable to such Defaulting Lender pursuant to Section 2.4.2 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 clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate Shares; and
(v) if all or any portion member of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized pursuant to clause its Lender Group hereunder (i) whether on account of principal, interest, fees or (ii) above, then, without prejudice to otherwise and including any rights or remedies of any LC Issuing Bank or any Lender hereunder, all Facility Fees amount that would otherwise would have been be payable to such Defaulting Lender pursuant to Section 2.4.1 2.05 hereof) shall, in lieu of being distributed to such Defaulting Lender or member, be retained by the Program 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 Program Agent to (solely with respect to i) the portion funding or cash collateralization of the Commitment of such Defaulting Lender’s Commitment that was utilized Lender as required by such LC Exposurethis Agreement, (ii) and Letter the funding of Credit fees payable under Section 2.4.2 with any Advance in respect to of which such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required has failed to fund any Swingline Loan its Pro Rata Share as required by this Agreement, and no LC Issuing Bank shall (iii) if so determined by the Program Agent and the Borrower, be required to issue, amend or increase any Letter held in such account as cash collateral for future funding obligations of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure Lender Group under this Agreement. Amounts held in such segregated account will be 100% covered by not accrue Interest or Fees. Any investment income earned from investments in the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10, and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit segregated account shall be allocated among non-Defaulting Lenders retained in a manner consistent with Section 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause the segregated account.
(d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders Program Agent and the LC Issuing Banks each agrees Borrower agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure Commitments of the Lenders and the Lender Group Limit of the Lender’s related Lender Group shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) in its Lender Group as its related Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate SharePro Rata Share of the Lender Group Limit and all funds held in a segregated account in respect of such Lender Group under Section 2.18(c) shall be released to the Administrative Agent of such Lender Group.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (SNAP-ON Inc), Omnibus Amendment (SNAP-ON Inc)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (i) the standby fees payable pursuant to Section 4.6 shall cease to accrue on the unused portion of the Revolving Commitment (and, if applicable, the Operating Commitment) of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and Lender;
(ii) its outstanding Swingline Exposure and/or LC Exposure for which such a Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 shall not be included in determining whether, and the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether whether, all Lenders or the Required Majority Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.916.10), except provided that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent amendment requiring the consent of all the Lenders or each affected Lender that by its terms affects any such Defaulting Lender more adversely differently than the other affected Lenders shall require the consent of such Defaulting Lender;; and
2.11.3 (iii) for the avoidance of doubt, the Borrower shall retain and reserve its other rights and remedies respecting each Defaulting Lender.
(b) If any Lender fails to fund its Applicable Percentage of an Advance hereunder, then each other Lender shall fund a portion of such defaulted amount in an amount equal to such other Lender’s Applicable Percentage (and, in calculating a Lender’s Applicable Percentage, the Commitment of any Defaulting Lender shall be excluded) of such unfunded portion; provided that, for certainty, no Lender shall be obligated by this Section 16.11 to make or provide an Advance in excess of its Commitment.
(c) If the re-allocation described in clause (b) above cannot be effected, or can only partially be effected, then (to the extent permitted by Applicable Law) such Defaulting Lender shall, within one (1) Banking Day following notice by the Agent, provide Cash Collateral to the Agent for such Defaulting Lender’s Applicable Percentage of such Advance (after giving effect to any partial re-allocation pursuant to clause (b) above) for so long as such Advance is outstanding, and if such Defaulting Lender shall fail to provide such Cash Collateral, then, at the request of the Fronting Lender, the Borrower shall provide such Cash Collateral to the Agent.
(d) If any Swingline Exposure or LC Exposure exists Letter of Credit is outstanding at the time such that a Lender becomes a Defaulting Lender Lender, then:
(i) all or any part of the Swingline Exposure and LC Exposure such Defaulting Lender’s Applicable Percentage of such Defaulting Lender Letter of Credit shall be reallocated re-allocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares but Applicable Percentages; provided that such re-allocation may only be effected if and to the extent the sum of all that (A) such re-allocation would not cause any non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total Applicable Percentage of all non-Defaulting Lenders’ Commitments; provided that each Advances to exceed its applicable Commitment(s) and (B) the conditions precedent in Sections 3.2(b), 3.2(c) and 3.2(d) are satisfied at such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default existstime;
(ii) if the reallocation re-allocation described in clause (i) above cannotnot be effected, or can only partially, partially be effected, Borrower then such Defaulting Lender shall (to the extent permitted by Applicable Law), within one (1) Banking Day following notice by Administrative the Agent, provide Cash Collateral to the Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure Applicable Percentage share of such Letter of Credit (after giving effect to any partial reallocation re-allocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 for so long as such LC Exposure Letter of Credit is outstanding;, and if such Defaulting Lender shall fail to provide such Cash Collateral, then, at the request of the Fronting Lender, the Borrower shall provide such Cash Collateral to the Agent; and
(iii) if Borrower Cash Collateralizes any portion the Applicable Percentages of the non-Defaulting Lenders are re-allocated pursuant to this Section 16.11(d), then the LC Fees payable to the Lenders pursuant to Section 4.5 shall be adjusted to give effect to such re-allocations in accordance with each such non-Defaulting Lender’s LC Exposure Applicable Percentages and if the Borrower provides Cash Collateral pursuant to clause (ii) above, then the Borrower shall not be required to pay the issuance fees or Fronting Fees attributable to the Cash Collateralized exposure of such Letters of Credit. Subject to Section 16.17, no reallocation hereunder shall constitute a waiver or release of any Letter claim of Credit fees to such any party hereunder against a Defaulting Lender pursuant to Section 2.4.2 with respect to such arising from that Lender having become a Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) if the LC Exposure , including any claim of the a non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter Lender as a result of Credit fees payable to the Lenders pursuant to Section 2.4.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate Shares; andLender’s increased exposure following such reallocation.
(ve) 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 LC Issuing Bank or If any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10, and participating interests in any 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 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender cease to be a Defaulting Lender, then the Swingline Exposure and LC Exposure then, upon becoming aware of the same, the Agent shall notify the other Lenders and (in accordance with the written direction of the Agent) such Lender (which has ceased to be a Defaulting Lender) shall purchase, and the other Lenders shall be readjusted on a pro rata basis sell and assign to reflect the inclusion such Lender, portions of such Loans equal in total to such Lender’s Commitment and on such date such Applicable Percentage share thereof without regard to sub Section (b) of this Section 16.11; and
(f) Without limiting the generality of Section 16.11(a)(iii), each Defaulting Lender shall purchase at par indemnify the Borrower for any losses, claims, costs, damages or liabilities (including reasonable out-of-pocket expenses and reasonable legal fees on a solicitor and his own client basis) incurred by the Borrower as a result of such Defaulting Lender failing to comply with the terms of the Loans this Agreement, including any failure to fund its portion of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may any Advance required to be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Sharemade by it hereunder.
Appears in 2 contracts
Samples: Credit Agreement (SemGroup Corp), Credit Agreement (SemGroup Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) commitment fees otherwise payable to such Defaulting Lender pursuant to Section 3.1(a) shall cease to accrue on the unused portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder)Lender;
2.11.2 (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders (or each Lender) or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.910.11); provided, except that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased or extended, or in the maturity case of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any an amendment, waiver or consent other modification providing for an increase in such Defaulting Lender’s Commitment, providing for an extension of such Defaulting Lender’s Commitment, or requiring the consent of all the Lenders or each directly and adversely affected Lender that by its terms affects any pursuant to Section 10.11(i)(B) if such Defaulting Lender more is a directly and adversely than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC L/C Exposure exists with respect to such Lender at the time such Lender becomes a Defaulting Lender Lender, then:
(i) all or any part of the Swingline Exposure and LC L/C Exposure of such Defaulting Lender shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages (for the purposes of such reallocation, such Defaulting Lender’s Commitment shall be disregarded in determining the Non-Defaulting Lenders’ respective Applicable Percentages), but only to the extent that (A) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC L/C Exposure does not exceed the total of all nonNon-Defaulting Lenders’ Commitments; provided that each , (B) after giving effect to any such reallocation shall be given effect only ifreallocation, at the date the applicable Lender becomes a no Non-Defaulting Lender, ’s Revolving Credit Exposure shall exceed such Non-Defaulting Lender’s Commitment and (C) no Inchoate Default or Event of Default existshas occurred and is continuing at such time and the other conditions set forth in Section 4.2(b) have been satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one Banking Business Day following the Borrower’s receipt of written notice by from the Administrative Agent (x) first, prepay such Swingline Exposure and (y) secondAgent, Cash Collateralize for the benefit of the LC applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s LC L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 7.4 for so long as such LC L/C Exposure is outstanding;
(iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any Letter of Credit participation fees to such Defaulting Lender pursuant to Section 2.4.2 3.1(b) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is Cash CollateralizedCollateralized by the Borrower;
(iv) if the LC all or any portion of such Defaulting Lender’s L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the all Letter of Credit participation fees that otherwise would have been payable to such Defaulting Lender under Section 3.1(b) with respect to such Defaulting Lender’s reallocated L/C Exposure shall be payable to the Non-Defaulting Lenders pursuant to Section 2.4.2 shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate SharesApplicable Percentages after giving effect to such reallocation; 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 LC Issuing Bank or any other Lender hereunder, all Facility Fees Letter of Credit participation fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 3.1(b) with respect to such Defaulting Lender’s LC unreallocated L/C Exposure shall be payable to the relevant LC Issuing Bank Banks, ratably based on the portion of the Fronting Exposure attributable to the Letters of Credit issued by each Issuing Bank, until and to the extent that such LC L/C Exposure is reallocated and/or Cash Collateralized; andCollateralized pursuant to clause (i) or (ii) above;
2.11.4 (d) so long as such Lender is determined by the Administrative Agent or any Issuing Bank to be a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure Fronting Exposure and the Defaulting Lender’s then outstanding LC L/C Exposure will be 100% covered by the Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral will be provided by the Borrower in accordance with Section 2.2.102.14(c)(ii), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.2.7 2.14(c)(i) (and such Defaulting Lender shall not participate therein). If ;
(ie) any 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 7 or otherwise) or received by the Administrative Agent from a bankruptcy event (Defaulting Lender pursuant to Section 10.6 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 term is defined 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 hereunder; third, to Cash Collateralize in clause (d) of accordance with the definition of “Defaulting Lender”) procedures set forth in Section 7.4 the Issuing Banks’ Fronting Exposure with respect to any Person such Defaulting Lender; fourth, as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such event shall continue 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 (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize in accordance with the procedures set forth in Section 7.4 the Issuing Banks’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement,; sixth, to the payment of any amounts owing to the Lenders or (ii) the Issuing Banks or as a result of any Swingline judgment of a court of competent jurisdiction obtained by any Lender or any LC the Issuing Bank has Banks against such Defaulting Lender as a good faith belief that any Lender has defaulted in fulfilling result of such Defaulting Lender’s breach of its obligations under one this Agreement; seventh, so long as no Default or more other agreements in which 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 commits to extend credit, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter as a result of Credit, unless Borrower shall have Cash Collateralized such Defaulting Lender’s Swingline Exposure or LC Exposurebreach of its obligations under this Agreement; and eighth, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such LC Issuing Bank, as payment is a payment of the case may be, shall have entered into arrangements with Borrower principal amount of any Loans or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it L/C Disbursements in respect of which such Defaulting Lender hereunderhas 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 4.2 were satisfied or waived, such payment shall 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 Obligations are held by the Lenders pro rata in accordance with the Commitments without giving effect to Section 2.14(c)(i). In 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 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto;
(f) in the event that the Administrative Agent, the Borrower, the Swingline Lenders and the LC each Issuing Banks each Bank agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure L/C Exposures of the Lenders shall be readjusted to reflect the inclusion of such previous Defaulting Lender’s Commitment Commitment, and on such date such previous Defaulting Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such previous Defaulting Lender to hold such Loans and L/C Exposure in accordance with its Proportionate ShareApplicable Percentage; provided, however, that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower or any other Loan Party while such previous Defaulting Lender was a Defaulting Lender; and
(g) the rights and remedies against, and with respect to, a Defaulting Lender under this Section 2.14 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Lender, Issuing Bank, Borrower or any other Loan Party may at any time have against, or with respect to, such Defaulting Lender (whether or not such Defaulting Lender has subsequently ceased to be a Defaulting Lender pursuant to Section 2.14(f)).
Appears in 2 contracts
Samples: Credit Agreement (Transocean Ltd.), Credit Agreement (Transocean Ltd.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 (a) Facility Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder)3.11;
2.11.2 (b) the Commitment and Revolving Committed Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.911.1); provided that any waiver, except that (i) the Commitment(s) of any Defaulting Lender may not be increased amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other affected Lenders Lenders, an increase, or extension of the Commitment Period, of the Commitment of a Defaulting Lender, a reduction in the principal amount owed to such Lender (other than by payment thereof) or an extension of the final maturity thereof, or a modification of this clause shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Swing Line Exposure or LC Letter of Credit Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i1) all or any part of the Swingline such Defaulting Lender’s Swing Line Exposure and LC Letter of Credit Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting non‑Defaulting Lenders in accordance with their respective Proportionate Shares Commitment Percentages but only to the extent that (A) the sum of all non-Defaulting non‑Defaulting Lenders’ Revolving Committed Credit Exposures plus plus, without duplication, the amount of such Defaulting Lender’s Swingline Swing Line Exposure and LC Letter of Credit Exposure reallocated to such non‑Defaulting Lenders, does not exceed the total of all non‑Defaulting Lenders’ Commitments and (B) with respect to each non-Defaulting Lenders’ Commitments; provided that each Lender, the sum of such reallocation shall be given effect only ifnon‑Defaulting Lender’s Committed Credit Exposure plus, at without duplication, the date the applicable Lender becomes a amount of such Defaulting Lender’s Swing Line Exposure and Letter of Credit Exposure reallocated to such non‑Defaulting Lender, no Inchoate Default or Event of Default exists;does not exceed such non‑Defaulting Lender’s Commitment; and
(ii2) if the reallocation described in clause (i1) above cannot, or can only partially, be effected, the Borrower shall within one Banking Domestic Business Day following notice by the Administrative Agent (xA) first, prepay such Swingline Swing Line Exposure and (yB) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i1) above) in accordance with a manner satisfactory to the procedures set forth in Section 2.2.10 Administrative Agent and the Issuer for so long as such LC Letter of Credit Exposure is outstanding;
(iii3) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to clause (ii) abovethis Section 2.13(c), the Borrower shall not be required to pay any Letter of Credit fees Participation Fees to such Defaulting Lender pursuant to Section 2.4.2 3.12 with respect to such Defaulting Lender’s LC Letter of Credit Exposure during the period such Defaulting Lender’s LC Letter of Credit Exposure is Cash Collateralized;cash collateralized; and
(iv4) if the LC Swing Line Exposure or Letter of Credit Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) abovethis Section 2.13(c), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 3.11 and Section 3.12 shall be adjusted to give effect to such reallocation, and the Administrative Agent shall promptly notify the Lenders of any reallocation described in accordance with such non-Defaulting Lenders’ Proportionate Shares; andthis Section 2.13(c).
(vd) 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 LC Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such any Lender is a Defaulting Lender, no Swingline the Swing Line Lender shall not be required to fund any Swingline Swing Line Loan and no LC Issuing Bank the Issuer shall not be required to issue, amend amend, extend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting non‑Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.102.13(c), and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit or newly made Swing Line Loan shall be allocated among non-Defaulting non‑Defaulting Lenders in a manner consistent with Section 2.2.7 2.13(c)(1) (and such Defaulting Lender Lenders shall not participate therein). If ;
(ie) any amount payable to such Defaulting Lender hereunder by (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 11.9 but excluding Section 3.13) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a bankruptcy event 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 (1) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (1) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuer or Swing Line Lender hereunder, (1) third, if so determined by the Administrative Agent or requested by the Issuer or Swing Line Lender, held in such account as such term is defined in clause (d) cash collateral for future funding obligations of the definition Defaulting Lender in respect of “Defaulting Lender”) with respect to any Person as to which existing or future participating interest in any Lender is, directly Swing Line Loan or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be(1) fourth, to defease the funding of any risk to it Revolving Credit Loan (including any Mandatory Borrowing) in respect of which such Defaulting Lender hereunder. In has failed to fund its portion thereof as required by this Agreement, as determined by the event that Administrative Agent, (1) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Swingline Defaulting Lender in respect of any Revolving Credit Loans (including any Mandatory Borrowings) under this Agreement, (1) sixth, to the payment of any amounts owing to the Lenders or the Issuer or Swing Line Lender as a result of any final and non appealable judgment of a court of competent jurisdiction obtained by any Lender, Issuer or Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (1) seventh, to the LC Issuing Banks each agrees payment of any amounts owing to the Borrower as a result of any final and non appealable 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 (1) 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 Revolving Credit Loan (including any Mandatory Borrowing) or Reimbursement Obligations in respect of drawings under Letters of Credit paid by the Issuer with respect to which a Defaulting Lender has adequately remedied funded its participation obligations and (y) made at a time when the conditions set forth in Section 6 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans (including Mandatory Borrowings) of, and reimbursement obligations owed to, all matters that caused such non‑Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(f) The Borrower shall have the right at any time during which a Lender is a Defaulting Lender to be a replace such Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted Lender pursuant to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareSection 3.13.
Appears in 2 contracts
Samples: Credit Agreement (CVS Caremark Corp), Credit Agreement (CVS Caremark Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.11(a);
2.11.2 (b) the 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 7.99.2); provided, that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, if such Defaulting Lender is an affected Lender, except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extendedas otherwise provided in Section 9.2, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without require the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring in accordance with the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderhereof;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages (for the purposes of such reallocation, such Defaulting Lender’s Commitment shall be disregarded in determining the Non-Defaulting Lenders’ respective Applicable Percentages) but only to the extent (x) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all nonNon-Defaulting Lenders’ Commitments; provided that Commitments and (y) after giving effect to any such reallocation, each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Non-Defaulting Lender, no Inchoate Default or Event of Default exists’s Revolving Credit Exposure does not exceed such Non-Defaulting Lender’s Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Day three (3) Business Days following written notice by the Administrative Agent (x) first, prepay such Swingline Exposure that has not been reallocated and (y) second, Cash Collateralize cash collateralize for the benefit of the LC applicable Issuing Banks only the Borrower’s obligations Obligations corresponding to such Defaulting Lender’s 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 2.2.10 2.5(i) 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 any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.11(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.11(a) and Section 2.11(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Proportionate Sharesreallocation; 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 LC the Issuing Bank or any other Lender hereunder, all Facility Fees Letter of Credit fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 2.11(b) with respect to such Defaulting Lender’s unreallocated LC Exposure shall be payable to the relevant applicable Issuing Banks ratably based on the portion of such LC Exposure attributable to Letters of Credit issued by such Issuing Bank Bank, until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized pursuant to clause (i) or (ii) above; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with this Section 2.2.102.22, and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with this Section 2.2.7 2.22 (and such Defaulting Lender shall not participate therein). If In the event that (ix) a bankruptcy event (as such term is defined in clause (d) direct or indirect parent company of a Lender becomes the definition subject of “Defaulting Lender”) with respect to a proceeding under any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur Debtor Relief Law following the date hereof Restatement Effective Date and for so long as such event proceeding under any Debtor Relief Law shall continue or (iiy) any the Swingline Lender or any LC 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 the Swingline Lender shall not be required to fund any Swingline Loan Loan, and no LC such Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, Lender satisfactory to such the Swingline Lender or such LC 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, the Borrower, the Swingline Lenders Lender and the LC each Issuing Banks Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable 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 that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.
Appears in 2 contracts
Samples: Revolving Credit Agreement (CF Industries Holdings, Inc.), Revolving Credit Agreement (CF Industries Holdings, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility (a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder4.1(a);
2.11.2 the (b) The Commitment and Revolving Credit Total Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders or the Required Lenders or Borrowing Base Required Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.913.1), except ; provided that (i) any waiver, amendment or modification requiring the Commitment(sconsent of all Lenders pursuant to Section 13.1 (other than Section 13.1(x)) or requiring the consent of each affected Lender pursuant to Section 13.1(i) or (ix) shall require the consent of such Defaulting Lender (which for the avoidance of doubt would include any change to the Maturity Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default interest rates) and any increase in such Defaulting Lender’s Commitment) and (ii) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment
(i. e., the Commitment Percentage of the Borrowing Base) of any a Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 if (c) If any Swingline Exposure or LC Letter of Credit Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares but only to the extent the sum of all non-Defaulting 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; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default then all or Event any part of Default exists;
such Swingline Exposure and Letter of Credit Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (iieffective on the day such Lender becomes a Defaulting Lender) if among the Non-Defaulting Lenders pro rata in accordance with their respective Commitment Percentages; provided that (A) each Non-Defaulting Lender’s Total Exposure may not in any event exceed the Commitment Percentage of the Loan Limit of such Non-Defaulting Lender as in effect at the time of such reallocation described in clause and (iB) above neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Banks or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, to the extent that all or any portion (the “unreallocated portion”) of the Defaulting Lender’s Swingline Exposure or Letter of Credit Exposure cannot, or can only partially, be effectedso reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.15(c)(i) or otherwise, the Borrower shall within one Banking Day two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC applicable Issuing Banks Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) ), in accordance with the procedures set forth in Section 2.2.10 3.8 for so long as such LC Letter of Credit Exposure is outstanding;
(iii) , if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Letter of Credit Exposure pursuant to clause (ii) abovethis Section 2.15(c), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 4.1(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure during the period such Defaulting Lender’s LC Letter of Credit Exposure is Cash Collateralized;
(iv) , if the LC Letter of Credit Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) abovethis Section 2.15(c), then the Letter of Credit fees Fees payable to for the account of the Lenders pursuant to Section 2.4.2 4.1(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate Shares; and
Commitment Percentages and the Borrower shall not be required to pay any Swingline Loan fees (vif any) if all or any portion Letter of Credit Fees to the Defaulting Lender pursuant to Section 4.1(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure during the period that such Defaulting Lender’s Letter of Credit Exposure is reallocated, or if any Defaulting Lender’s Letter of Credit Exposure is neither reallocated nor Cash Collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.15(c), then, without prejudice to any rights or remedies of any LC Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit fees Fees payable under Section 2.4.2 4.1(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the relevant LC such Issuing Bank until and to the extent that such LC Letter of Credit Exposure is reallocated Cash Collateralized and/or Cash Collateralized; andreallocated;
2.11.4 so (d) So long as such any Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC Issuing Bank shall will be required to issue, amend or increase issue any new Letter of CreditCredit or amend any outstanding Letter of Credit to increase the Stated Amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless such Swingline Lender or LC each Issuing Bank, as the case may be, Bank is reasonably satisfied that any exposure that would result from the related exposure and the to such Defaulting Lender’s then outstanding LC Exposure will be 100% Lender is eliminated or fully covered by the Commitments of the nonNon-Defaulting Lenders and/or or by Cash Collateral will be provided by Borrower Collateralization or a combination thereof in accordance with Section 2.2.10clause (c) above or otherwise in a manner reasonably satisfactory to such Issuing Bank, and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.2.7 2.15(c)(i) (and such Defaulting Lender Lenders shall not participate therein). ; and
(e) If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender isBorrower, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders Lender and the LC each Issuing Banks each agrees Bank agree in writing in their discretion that a Lender that is a Defaulting Lender has adequately remedied all matters that caused such Lender should no longer be deemed to be a Defaulting Lender, then the Swingline Exposure Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and LC subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Letter of Credit Exposure of the Lenders such Lender reallocated pursuant to Section 2.15(c) shall be readjusted reallocated back to reflect such Lender; provided that, except to the inclusion extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s Commitment having been a Defaulting Lender.
(f) 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 Section 11 or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 13.8), 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 each Issuing Bank and the Swingline Lender 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 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 Borrower, 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; fifth, to the payment of any amounts owing to the Lenders, each Issuing Bank or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such date Issuing Bank or the Swingline Lender against that Defaulting Lender as a result of that 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 that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and seventh, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such Lender shall purchase at par such payment is a payment of the principal amount of any Loans of or Unpaid Drawings, such payment shall be applied solely to pay the relevant Loans of, and Unpaid Drawings owed to, the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this Section 2.15(f). Any payments, prepayments or other Lenders amounts paid or payable to a Defaulting Lender that are applied (other than Swingline Loansor held) as Administrative Agent to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to Section 3.8 shall determine may be necessary in order for such deemed paid to and redirected by that Defaulting Lender, and each Lender to hold such Loans in accordance with its Proportionate Shareirrevocably consents hereto.
Appears in 2 contracts
Samples: Credit Agreement (Athlon Energy Inc.), Credit Agreement (Athlon Energy Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Committed Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Committed Lender is a Defaulting Lender:
2.11.1 Facility (i) Unused Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it 2.04 and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take entitled to receive any action hereunder (including any consent to any amendment, waiver or other modification L/C Fees pursuant to Section 7.9), except that (i2.17(c) otherwise payable to the Commitment(s) account of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or with respect to any part Letter of Credit, but instead, the Swingline Exposure and LC Exposure of such Defaulting Lender Borrower shall be reallocated among pay to the non-Defaulting Lenders the amount of such L/C Fees in accordance with the upward adjustments in their respective Proportionate Pro Rata Shares but only allocable to such Letter of Credit pursuant to clause (b) below, with the balance of such fee, if any, payable to the extent applicable Issuing Lender for its own account.
(b) During any period in which there is a Defaulting Lender, for purposes of computing the sum amount of all the obligation of each non-Defaulting Lenders’ Revolving Lender to acquire, refinance or fund participations in Letters of Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed pursuant to Section 2.17, the total “Pro Rata Share” of all each non-Defaulting Lenders’ CommitmentsLender shall be computed without giving effect to the Commitment of that Defaulting Lender; provided that each such reallocation shall be given effect only ifif the aggregate obligation of each non-Defaulting Lender to acquire, at refinance or fund participations in Letters of Credit shall not exceed the date positive difference, if any, of (A) the applicable Commitment of that non-Defaulting Lender becomes a minus (B) the Credit Exposure of that non-Defaulting Lender, no Inchoate Default or Event of Default exists;.
(iic) if Promptly on demand by any Issuing Lender or the reallocation described in clause (i) above cannotAdministrative Agent from time to time, or can only partially, be effected, the Borrower shall within one Banking Day following notice by Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding deliver to such Defaulting Lender’s LC Issuing Lender cash collateral in an amount sufficient to cover all Fronting Exposure with respect to such Issuing Lender (after giving effect to any partial reallocation pursuant to clause (ib) above) on terms reasonably satisfactory to the Administrative Agent and such Issuing Lender (and such cash collateral shall be in accordance Dollars). Any such cash collateral shall be deposited in a separate account with the procedures set forth in Section 2.2.10 for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes any portion applicable Issuing Lender, subject to the exclusive dominion and control of such Issuing Lender, as collateral (solely for the benefit of such Issuing Lender) for the payment and performance of each Defaulting Lender’s LC Exposure pursuant Pro Rata Share of outstanding L/C Obligations with respect to clause (ii) above, Borrower such Issuing Lender. Amounts in such account shall not be required applied by the Administrative Agent to pay reimburse the applicable Issuing Lender immediately for each Defaulting Lender’s Pro Rata Share of any drawing under any Letter of Credit fees to which has not otherwise been reimbursed by the Borrower or such Defaulting Lender.
(d) Neither the Commitment nor the Loans of such Defaulting Lender pursuant to Section 2.4.2 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 shall be included in determining whether all Lenders, a majority of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then or the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate Shares; and
(v) if all Required Managing Agents have taken or may take 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 LC Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure action hereunder and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments Managing Agent of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10, and participating interests in any 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 2.2.7 (and Lender Group which includes such Defaulting Lender shall not participate therein). If be included in determining whether all Managing Agents have taken or may have taken any action hereunder (i) a bankruptcy event (as such term is defined including, in clause (d) of the definition of “Defaulting Lender”) with respect each case, any consent to any Person as to which any Lender is, directly amendment or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, waiver pursuant to Section 2.11.3 10.01); provided, that any waiver, amendment or otherwise such Swingline modification requiring the consent of all Lenders or Managing Agents or each affected Lender or such LC Issuing BankManaging Agent, as the case may beapplicable, shall have entered into arrangements with Borrower or which affects such Lender, satisfactory to such Swingline Defaulting Lender or the related Managing Agent differently than other affected Lenders or Managing Agents shall require the consent of such LC Issuing BankDefaulting Lender or the related Managing Agent, as the case may be, to defease any risk to it in respect of such Lender hereunder. applicable;
(e) In the event that the Administrative Agent, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees Agent determines that a Defaulting Lender has adequately remedied all matters that caused such Committed Lender to be a Defaulting Lender, then the Swingline Exposure Pro Rata Shares, the Lender Group Limits and LC Exposure of the Lenders Lender Group Percentages shall be readjusted to reflect the inclusion of such Committed Lender’s Commitment and on such date such Committed Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent and the Managing Agents shall determine may be necessary in order for such Committed Lender to hold such Loans and funded and unfunded participations in Letters of Credit in accordance with its Pro Rata Share and for such Committed Lender’s Lender Group to hold such Loans in accordance with its Proportionate Share.Lender Group Percentage; and
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Newell Brands Inc.), Loan and Servicing Agreement (Newell Brands Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting LenderLender hereunder (as determined by the Administrative Agent), then the following provisions shall apply for so long as such Defaulting Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) the Administrative Agent shall promptly notify the Borrower and each Lender that such Lender is a Defaulting Lender for purposes of this Agreement;
(b) fees under Section 2.09(a) shall cease to accrue on the Commitment of such Defaulting Lender pursuant to Section 2.4.1 Lender;
(except to the extent allocable to (ic) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Commitment Commitments and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining disregarded for all purposes of any determination of whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 9.02); provided, that this clause (c) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification pursuant to Section 7.9), except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without requiring the consent of such Lender or each Lender affected thereby;
(d) for purposes of determining the amount of the total Commitments, the Commitment of each Defaulting Lender and shall be excluded therefrom (ii) other than any amendment, waiver or consent requiring the consent portion of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Commitment pursuant to which there is then outstanding a Loan from such Defaulting Lender);
2.11.3 (e) if any Committed Swingline Exposure or LC Uncommitted Swingline Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Committed Swingline Exposure and LC Uncommitted Swingline Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Commitments but only to the extent that the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Committed Swingline Exposure and LC Uncommitted Swingline Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking (1) Business Day following notice by the Administrative Agent (x) first, prepay such Committed Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 for so long as such LC Exposure is outstandingUncommitted Swingline Exposure;
(iiif) if Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 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 clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate 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 LC Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such Lender is a Defaulting Lender, no Committed Swingline Lender shall be required to fund any Committed Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of CreditLoan, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10, and participating interests in Committed Swingline Exposure related to any newly made Committed Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 2.20(e)(i) (and such Defaulting Lender shall not participate therein). If ;
(g) in the Administrative Agent’s sole discretion:
(i) a bankruptcy event (as such term is defined in clause (d) any prepayment of the definition principal amount of “any Loans shall be applied solely to prepay the Loans of all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans of any Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or ; and
(ii) any Swingline amount payable to such Defaulting Lender pursuant to this Agreement (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 2.12 or Section 2.15) 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, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent, (ii) second, pro rata, to the payment of any amounts owing to the Borrowers or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Borrower or any LC Issuing Bank has Lender against such Defaulting Lender as a good faith belief that any Lender has defaulted in fulfilling result of such Defaulting Lender’s breach of its obligations under one or more other agreements in which this Agreement and (iii) third, to such Lender commits to extend credit, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Defaulting Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect otherwise directed by a court of such Lender hereundercompetent jurisdiction. In the event that the Administrative Agent, the Borrower, the Committed Swingline Lenders and the LC Issuing Banks Uncommitted Swingline Lenders, if any, each agrees agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Committed Swingline Exposure and LC the Uncommitted Swingline Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Committed Swingline Loans and Uncommitted Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage.
Appears in 2 contracts
Samples: 364 Day Credit Agreement (E TRADE FINANCIAL Corp), 364 Day Credit Agreement (E TRADE FINANCIAL Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of any Revolving Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder3.3(a);
2.11.2 (b) the Commitment Commitments and Revolving Total Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders, the Majority Facility Lenders, the Majority A Lenders, or any other group of Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.910.2), except ; provided that (i) the Commitment(s) of any Defaulting Lender may not be increased waiver, amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other affected Lenders shall require the consent of such Defaulting Lender, and (ii) any waiver, amendment or modification that would increase the Commitments of such Lender, or postpone the final maturity date of any payment of principal owed to such Lender, shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting non‑Defaulting Lenders in accordance with their respective Proportionate Shares but only Applicable Percentages to the extent (A) immediately after giving effect thereto, the sum of all non-Defaulting non‑Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does 1821445.29\C072091\0303228 would not exceed the total of all non-Defaulting non‑Defaulting Lenders’ Commitments; provided that each Revolving Commitments and (B) the conditions set forth in Section 5.2 are satisfied at such reallocation time (for the avoidance of doubt, no Lender’s Revolving Commitment shall be given effect only if, at the date the applicable Lender becomes changed as a Defaulting Lender, no Inchoate Default or Event result of Default existssuch reallocation);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) firstAgent, prepay such Swingline Exposure and (y) secondthe Borrower shall, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above, (A) first, prepay such Swingline Exposure and (B) second, cash collateralize such Defaulting Lender’s LC Exposure in accordance with the procedures set forth in Section 2.2.10 2.9(i) for so long as such LC Exposure is outstanding;
(iii) if to the extent the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) abovethis Section 2.12(c), the Borrower shall not be required to pay any Letter fees for the account of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 3.3(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Lenders such non‑Defaulting Lender is reallocated pursuant to clause (i) abovethis Section 2.12(c), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 3.3(b) shall be adjusted in accordance with such non-Defaulting non‑Defaulting Lenders’ Proportionate SharesApplicable Percentages; and
(v) if all the Administrative Agent shall promptly notify the Lenders of any reallocation described in this Section 2.12(c);
(d) so long as any Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend, extend or increase any portion Letter of Credit, unless it is satisfied that the related 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 2.12(c), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non‑Defaulting Lenders in a manner consistent with Section 2.12(c)(i) (and Defaulting Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized pursuant to clause Lender hereunder (i) whether on account of principal, interest, fees or (ii) above, then, without prejudice to otherwise and including any rights or remedies of any LC Issuing Bank or any Lender hereunder, all Facility Fees amount that would otherwise would have been be payable to such Defaulting Lender pursuant to Section 2.4.1 2.11(c) but excluding Section 3.9) 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 reasonably determined by the Administrative Agent (solely with respect 1) first, to the payment of any amounts then owing by such Defaulting Lender to the Administrative Agent hereunder, (1) second, pro rata, to the payment of any amounts then owing by such Defaulting Lender to the Issuing Bank or Swingline Lender hereunder, (1) third, to the extent requested by the Issuing Bank or Swingline 0000000.29\C072091\0303228 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, (1) 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, (1) 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, (1) sixth, to the payment of any amounts owing to the Lenders or the Issuing Bank or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, Issuing Bank or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s Commitment that was utilized breach of its obligations under this Agreement, (1) 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 LC Exposure) and Letter Defaulting Lender as a result of Credit fees payable under Section 2.4.2 with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter breach of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10its obligations under this Agreement, and participating interests in any 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 2.2.7 (and 1) eighth, to such Defaulting Lender shall not participate therein). If or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (ix) a bankruptcy event (as such term is defined in clause (d) prepayment of the definition principal amount of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly Loans or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its reimbursement obligations under one or more other agreements in which such Lender commits to extend credit, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that Disbursements in respect of which a Defaulting Lender has adequately remedied funded its participation obligations and (y) 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 matters that caused such Lender non‑Defaulting Lenders pro rata prior to be a being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Share.
Appears in 2 contracts
Samples: Credit and Guarantee Agreement (Gci Inc), Credit and Guarantee Agreement (General Communication Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:.
2.11.1 Facility (a) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 2.12(a).
(except to the extent allocable to (ib) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the The Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Super-Majority Lenders, the Required Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.911.02), except provided that (i) the Commitment(s) of any Defaulting Lender may not be increased waiver, consent, amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without modification requiring the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender;, (ii) any waiver, consent, amendment or modification requiring the consent of each Lender shall require the consent of such Defaulting Lender (except in respect of any increases in the Borrowing Base or the Maximum Facility Amount), and (iii) the Commitment of such Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender.
2.11.3 if (c) If any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and such LC Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages but only to the extent (x) the sum (without duplication) of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all nonNon-Defaulting Lenders’ Commitments; provided that , (y) the sum of each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Non-Defaulting Lender’s Credit Exposure plus its reallocated share of such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment, no Inchoate Default or Event of Default existsand (z) the conditions set forth in Section 5.02 are satisfied at that time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower shall then the Borrowers shall, within one Banking (1) Business Day following notice by the Administrative Agent (x) firstAgent, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Bank only Borrower’s the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.06(j) for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower then the Borrowers shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.12(a) and 2.12(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate SharesApplicable Percentages; and
(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) above, then, without prejudice to any rights or remedies of any LC the Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or Cash Collateralized; andreallocated.
2.11.4 so (d) So long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure of such Letter of Credit and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by Borrower the Borrowers in accordance with Section 2.2.102.22(c), and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.2.7 2.22(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a Parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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, no Swingline Lender shall be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend amend, or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Swingline Lender or such LC the Issuing Bank, as the case may be, Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Borrower, the Swingline Lenders Borrowers and the LC Issuing Banks Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date date, such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Antero Resources LLC), Credit Agreement (Antero Resources Finance Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unused portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder§2.4(f);
2.11.2 (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.9§25); provided that any waiver, except amendment or modification that (i) increases the Commitment(s) Commitment of a Defaulting Lender, forgives all or any Defaulting Lender may not be increased or extended, or the maturity portion of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgivenLoan or Reimbursement Obligation or interest thereon owing to a Defaulting Lender, in each case without reduces the consent of such Applicable Margin on the underlying interest rate owing to a Defaulting Lender and (ii) any amendment, waiver or consent requiring extends the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders Maturity Date shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or unfunded LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) so long as the conditions set forth in §11 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), all or any part of the Swingline Exposure and unfunded LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Commitment Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and unfunded LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that each Commitments and (y) such reallocation shall be given effect only if, at the date the applicable Lender becomes does not cause a non-Defaulting Lender, no Inchoate Default or Event of Default exists’s Revolving Credit Exposure to exceed its Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall (x) within one Banking Day two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (or the portion remaining after a partial reallocation as aforesaid) and (y) secondwithin five Business Days following notice by the Administrative Agent, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Fronting Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s unfunded LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 §3.8 for so long as such unfunded LC Exposure is outstanding;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s unfunded LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any Letter of Credit fees, and such fees shall not accrue, to such Defaulting Lender pursuant to Section 2.4.2 §3.6 with respect to such Defaulting Lender’s unfunded LC Exposure during the period such Defaulting Lender’s unfunded LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the unfunded LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 §3.6 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate Sharesreallocated Commitment Percentages; and
(v) if all or any portion of such Defaulting Lender’s unfunded 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 LC Issuing the Fronting Bank or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such unfunded LC Exposure) under §2.4(f) and Letter of Credit fees Fees payable under Section 2.4.2 §3.6 with respect to such Defaulting Lender’s unfunded LC Exposure shall be payable to the relevant LC Issuing Fronting Bank until and to the extent that such unfunded LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no Swingline the Swing Lender shall not be required to fund any Swingline Swing Loan and no LC Issuing the Fronting Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure to the Swing Lender and the Defaulting Lender’s then outstanding unfunded LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.10§4.12(c), and participating interests in any newly made Swingline Swing Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 §4.12(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which a Parent of any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 creditcontinue, no Swingline the Swing Lender shall not be required to fund any Swingline Swing Loan and no LC Issuing the Fronting Bank shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such the related exposure and the Defaulting Lender’s Swingline then outstanding unfunded LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Swing Lender or such LC Issuing the Fronting Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Swingline the Swing Lender or such LC Issuing the Fronting 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, the Borrower, the Swingline Lenders Swing Lender and the LC Issuing Banks Fronting Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and unfunded LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Competitive Bid Loans and Swing Loans) and the funded and unpaid participations of the other Lenders in the Swing Loans and Letters of Credit as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareCommitment Percentage.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Mack Cali Realty L P), Revolving Credit Agreement (Mack Cali Realty L P)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (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 2.4.1 the extent, and during the period in which, such Lender is a Defaulting Lender (except and the Borrower shall not be required to pay any such commitment fee that otherwise would have accrued and been required to have been paid to such Defaulting Lender to the extent allocable to (i) and during the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for period in which such Lender is a Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunderLender);
2.11.2 (b) the 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 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 7.99.02, except for any amendment or waiver described in Section 9.02(b)(i), except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii), (iii) or (iv)); provided that any amendmentwaiver, waiver amendment or consent modification requiring the consent of all Lenders, two-thirds of the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other Lenders or affected Lenders (as applicable) shall require the consent of such Defaulting Lender;.
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and such LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages but only to the extent (x) the sum of all non-Defaulting 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; provided that each , (y) no non-Defaulting Lender’s Credit Exposure will exceed such reallocation Lender’s Commitment, and (z) the conditions set forth in Section 4.02 are satisfied at such time (and unless the Borrower has notified the Administrative Agent at such time, the Borrower shall be given effect only if, deemed to have represented and warranted that such conditions are satisfied at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default existssuch 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 Banking Day three Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) secondAgent, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.04(k) for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 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 clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate 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 LC Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10, and participating interests in any 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 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Share.
Appears in 2 contracts
Samples: Senior Secured Revolving Credit Agreement (Oaktree Specialty Lending Corp), Senior Secured Revolving Credit Agreement (Oaktree Specialty Lending Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (i) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 3.05(a);
(except to the extent allocable to (iii) the Maximum Credit Amount and the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Commitment and Revolving participation interests in Letters of Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.912.02), except provided, that any waiver, amendment or modification (iA) that would increase the Commitment(s) of any Defaulting Lender may not be increased Maximum Credit Amount or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent Commitment of such Defaulting Lender and or (iiB) any amendment, waiver or consent requiring the consent of all the Lenders or each adversely affected Lender that by its terms Lender, in each case which affects any such Defaulting Lender more differently than all other Lenders or all other adversely than affected Lenders, as the other affected Lenders case may be, shall require the consent of such Defaulting Lender; provided further, that any redetermination or affirmation of the Borrowing Base shall occur without the participation of a Defaulting Lender, but such Defaulting Lender’s Maximum Credit Amount and Commitment may not be increased without the consent of such Defaulting Lender;
2.11.3 (iii) if any Swingline Exposure or LC Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(iA) all or any part of the Swingline Exposure and such LC Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages (for the purposes of such reallocation, the Defaulting Lender’s Maximum Credit Amount shall be disregarded in determining the Non-Defaulting Lenders’ Applicable Percentages) but only to the extent (x) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all nonNon-Defaulting Lenders’ Commitments; provided that Maximum Credit Amounts, (y) the conditions set forth in Section 6.02 are satisfied at such time, and (z) the sum of each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Non-Defaulting Lender, no Inchoate Default or Event ’s Credit Exposure plus its reallocated share of Default existssuch Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Maximum Credit Amount;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, the Borrower shall within one Banking Day two (2) Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2.10 2.08(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) abovethis Section 4.03(c)(iii), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 3.05(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(ivD) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) abovethis Section 4.03(c)(iii), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 3.05(a) and Section 3.05(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate Shares; andMaximum Credit Amounts;
(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 (i) or (ii) abovethis Section 4.03(c)(iii), then, without prejudice to any rights or remedies of any LC Issuing Bank or any Lender hereunder, all Facility Fees commitment fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) under Section 3.05(a) and Letter letter of Credit credit fees payable under Section 2.4.2 3.05(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC applicable Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or Cash Collateralized; andreallocated;
2.11.4 (iv) so long as such any Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.104.03(c), and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.2.7 4.03(c)(iii)(A) (and such any Defaulting Lender shall not participate therein). If .
(iv) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC 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, Borrower, the Swingline Lenders Borrower and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Defaulting Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Non-Defaulting Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Defaulting Lender to hold such Loans in accordance with its Proportionate ShareCommitment.
Appears in 2 contracts
Samples: Credit Agreement (Epl Oil & Gas, Inc.), Credit Agreement (Energy Partners LTD)
Defaulting Lenders. Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.11(a);
2.11.2 (b) the 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 7.99.2); provided, that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, if such Defaulting Lender is an affected Lender, except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extendedas otherwise provided in Section 9.2, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without require the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring in accordance with the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lenderhereof;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages (for the purposes of such reallocation, such Defaulting Lender’s Commitment shall be disregarded in determining the Non-Defaulting Lenders’ respective Applicable Percentages) but only to the extent (x) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all nonNon-Defaulting Lenders’ Commitments; provided Commitments and (y) after giving effect to any such reallocation, each Non-Defaulting Lender’s Revolving Credit Exposure does not exceed such Non-Defaulting Lender’s Commitment. Subject to Section 9.22, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that each such reallocation shall be given effect only if, at the date the applicable Lender becomes having become a Defaulting Lender, no Inchoate Default or Event including any claim of Default exists;a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower the Borrowers shall within one Banking Day three (3) Business Days following written notice to the Lead Borrower by the Administrative Agent (x) first, prepay such Swingline Exposure that has not been reallocated and (y) second, Cash Collateralize cash collateralize for the benefit of the LC applicable Issuing Banks only Borrower’s obligations the Borrowers’ Obligations corresponding to such Defaulting Lender’s 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 2.2.10 2.5(i) for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower the Borrowers shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.11(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.11(a) and Section 2.11(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Proportionate Sharesreallocation; 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 LC Issuing Bank or any other Lender hereunder, all Facility Fees Letter of Credit fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 2.11(b) with respect to such Defaulting Lender’s unreallocated LC Exposure shall be payable to the relevant applicable Issuing Banks ratably based on the portion of such LC Exposure attributable to Letters of Credit issued by such Issuing Bank Bank, until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized pursuant to clause (i) or (ii) above; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Lead Borrower in accordance with this Section 2.2.102.22, and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with this Section 2.2.7 2.22 (and such Defaulting Lender shall not participate therein). If In the event that (ix) a bankruptcy event (as such term is defined in clause (d) direct or indirect parent company of a Lender becomes the definition subject of “Defaulting Lender”) with respect to a proceeding under any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur Debtor Relief Law following the date hereof Fourth Restatement Effective Date and for so long as such event proceeding under any Debtor Relief Law shall continue or (iiy) any the Swingline Lender or any LC 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 the Swingline Lender shall not be required to fund any Swingline Loan Loan, and no LC such Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower the Borrowers or such Lender, Lender satisfactory to such the Swingline Lender or such LC 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, the Lead Borrower, the Swingline Lenders Lender and the LC each Issuing Banks each Bank agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of any Borrower while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.
Appears in 2 contracts
Samples: Revolving Credit Agreement (CF Industries Holdings, Inc.), Revolving Credit Agreement (CF Industries Holdings, Inc.)
Defaulting Lenders. Notwithstanding any provision of anything contained in this Agreement to the contrary, if any Tranche B Term Lender, Tranche C Term Lender, Tranche D Term Lender, Tranche E Term Lender, Tranche F Term Lender or Tranche G Term Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Tranche B Term Lender, Tranche C Term Lender, Tranche D Term Lender, Tranche E Term Lender, Tranche F Term Lender or Tranche G Term Lender, as applicable, is a Defaulting Lender:
2.11.1 Facility Fees (a) the Borrower shall cease have the right, at its sole expense and effort to accrue on seek one or more Persons reasonably satisfactory to the Administrative Agent and the Borrower to each become a substitute Tranche B Term Lender, Tranche C Term Lender, Tranche D Term Lender, Tranche E Term Lender, Tranche F Term Lender, Tranche G Term Lender or Tranche H Term Lender, as applicable, and assume all or part of the Tranche B Term Loan Commitment, Tranche C Term Loan Commitment, Tranche D Term Loan Commitment, Tranche E Term Loan Commitment, Tranche F Term Loan Commitment, Tranche G Term Loan Commitment or Tranche H Term Loan Commitment, as applicable, of any such Defaulting Lender pursuant to Section 2.4.1 (except to and the extent allocable to (i) Borrower, the outstanding principal amount of the Revolving Loans funded by it Administrative Agent and (ii) its outstanding Swingline Exposure and/or LC Exposure for which any such Defaulting Lender has provided Cash Collateral to the relevant Swingline substitute Tranche B Term Lender, Tranche C Term Lender, Tranche D Term Lender, Tranche E Term Lender, Tranche F Term Lender, Tranche G Term Lender or LC Issuing Bank hereunder);
2.11.2 the Commitment Tranche H Term Lender, as applicable, shall execute and Revolving Credit Exposure of deliver, and such Defaulting Lender shall not thereupon be included in determining whether the Required Lenders deemed to have taken or may take any action hereunder executed and delivered, an appropriately completed Assignment and Acceptance to effect such substitution; and
(including any consent to any amendment, waiver or other modification pursuant to Section 7.9), except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (iib) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares but only to the extent the sum of all non-Defaulting 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; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower shall within one Banking Day following notice by Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower shall not be required to pay any Letter of Credit fees amount payable to such Defaulting Lender pursuant to Section 2.4.2 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;
hereunder (iv) if the LC Exposure whether on account of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveprincipal, then the Letter of Credit interest, fees payable to the Lenders pursuant to Section 2.4.2 shall or otherwise and including any amount that would otherwise be adjusted in accordance with such non-Defaulting Lenders’ Proportionate 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 LC Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 11.7) 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 Requirement of Law, be applied at such time or times as may be determined by the Administrative Agent (solely with respect i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, 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, (iii) third, 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, (iv) fourth, pro rata, 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 Commitment that was utilized by such LC Exposurebreach of its obligations under this Agreement and (v) and Letter of Credit fees payable under Section 2.4.2 with respect fifth, to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, is satisfied that the related exposure otherwise directed by a court of competent jurisdiction. The rights and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower in accordance with Section 2.2.10, and participating interests in any 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 2.2.7 (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders and the LC Issuing Banks each agrees that remedies against a Defaulting Lender has adequately remedied all matters under this Section 4.14 are in addition to other rights and remedies that caused the Borrower may have against such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders . The arrangements permitted or required by this Section 4.14 shall be readjusted to reflect permitted under this Agreement, notwithstanding any limitation on Liens or the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Sharepro rata sharing provisions or otherwise.
Appears in 2 contracts
Samples: Credit Agreement (Warner Music Group Corp.), Credit Agreement (Warner Music Group 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:
2.11.1 Facility Fees (a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.12(a);
2.11.2 (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 7.99.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extendedas otherwise provided in Section 9.02, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without require the consent of such Defaulting Lender and in accordance with the terms hereof;
(iii) any amendment, waiver or consent requiring in the consent case of all the Lenders or each affected a Defaulting Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting is a Dollar Revolving Lender;
2.11.3 if , any Swingline Exposure or Dollar LC Exposure exists at the time such Dollar Revolving Lender becomes a Defaulting Lender or (ii) in the case of a Defaulting Lender that is a Multi-Currency Revolving Lender, any Multi-Currency LC Exposure exists at the time such Multi-Currency Revolving Lender becomes a Defaulting Lender, then:
(i) in the case of a Defaulting Lender that is a Dollar Revolving Lender, all or any part of the Swingline Exposure (other than any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c)) and Dollar LC Exposure (other than any portion thereof attributable to unreimbursed Dollar 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 Dollar Revolver Lenders in accordance with their respective Proportionate Shares Dollar Applicable Percentages but only to the extent that the sum of all non-Defaulting Dollar Revolving Lenders’ Dollar Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Dollar LC Exposure does not exceed the total sum of all non-Defaulting Dollar Revolving Lenders’ Dollar Revolving Commitments; provided that each such no reallocation under this clause (i) shall be given effect only if, at the date the applicable constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender becomes arising from that Lender having become a Defaulting Lender, no Inchoate Default or Event including any claim of Default existsa non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation;
(ii) in the case of a Defaulting Lender that is a Multi-Currency Revolving Lender, all or any part of the Multi-Currency LC Exposure (other than any portion thereof attributable to unreimbursed Multi-Currency 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 Multi-Currency Revolver Lenders in accordance with their respective Multi-Currency Applicable Percentages but only to the extent that the sum of all non-Defaulting Multi-Currency Revolving Lenders’ Multi-Currency Revolving Exposures plus such Defaulting Lender’s Multi-Currency Exposure does not exceed the sum of all non-Defaulting Multi-Currency Revolving Lenders’ Multi-Currency Revolving Commitments; provided that no reallocation under this clause (ii) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation;
(iii) if the reallocation described in (A) clause (i) above cannot, or can only partially, be effected, Borrower the Borrowers shall within one Banking Business Day following notice by the Administrative Agent (x1) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (y2) second, Cash Collateralize cash collateralize for the benefit of the LC Dollar Issuing Banks only Borrower’s obligations corresponding to the portion of such Defaulting Lender’s Dollar LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 2.2.10 2.05(i) for so long as such Dollar LC Exposure is outstanding and (B) clause (ii) above cannot, or can only partially, be effected, the Borrowers shall within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the Multi-Currency Issuing Banks the portion of such Defaulting Lender’s Multi-Currency LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.05(i) for so long as such Multi-Currency LC Exposure is outstanding;
(iiiiv) if Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s Dollar LC Exposure or Multi-Currency LC Exposure pursuant to clause (iiiii) above, Borrower the Borrowers shall not be required to pay any Letter of Credit participation fees to such Defaulting Lender pursuant to Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period portion of such Defaulting Lender’s Dollar LC Exposure or Multi-Currency LC Exposure, as the case may be, for so long as such Defaulting Lender’s Dollar LC Exposure or Multi-Currency LC Exposure, as the case may be, is Cash Collateralizedcash collateralized;
(ivv) if any portion of the Dollar LC Exposure or Multi-Currency LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to clause (i) or (ii) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Proportionate Shares; andreallocation;
(vvi) if all or any portion of such Defaulting Lender’s Dollar LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (i) or (iiiii) above, then, without prejudice to any rights or remedies of any LC Dollar Issuing Bank or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (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 2.4.2 2.12(b) with respect to such Defaulting Lender’s Dollar LC Exposure shall be payable to the relevant Dollar Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s Dollar LC Exposure attributable to Dollar Letters of Credit issued by each Dollar Issuing Bank Bank) until and to the extent that such Dollar LC Exposure is reallocated and/or Cash Collateralizedcash collateralized;
(vii) if all or any portion of such Defaulting Lender’s Multi-Currency LC Exposure is neither reallocated nor cash collateralized pursuant to clause (ii) or (iii) above, then, without prejudice to any rights or remedies of any Multi-Currency Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s Multi-Currency LC Exposure shall be payable to the Multi-Currency Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s Multi-Currency LC Exposure attributable to Multi-Currency Letters of Credit issued by each Multi-Currency Issuing Bank) until and to the extent that such Multi-Currency LC Exposure is reallocated and/or cash collateralized; and
2.11.4 (d) so long as such Revolving Lender is a Defaulting Lender, no (i) in the case of a Defaulting Lender that is a Dollar Revolving Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no LC Dollar Issuing Bank shall be required to issue, amend amend, renew or increase extend any Dollar Letter of Credit, unless such Swingline Lender or LC Issuing Bankunless, as the case may bein each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or Dollar LC Exposure Exposure, as applicable, will be 100% fully covered by the Dollar Revolving Commitments of the non-Defaulting Dollar Revolving Lenders and/or Cash Collateral will be cash collateral provided by Borrower the Borrowers in accordance with Section 2.2.102.20(c), and participating interests in any newly made such funded Swingline Loan or in any newly issued such issued, amended, renewed or increased extended Dollar Letter of Credit shall will be allocated among the non-Defaulting Dollar Revolving Lenders in a manner consistent with Section 2.2.7 2.20(c)(i) (and such Defaulting Lender shall not participate therein) or (ii) in the case of a Defaulting Lender that is a Multi-Currency Revolving Lender, no Multi-Currency Issuing Bank shall be required to issue, amend, renew or extend any Multi-Currency Letter of Credit unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Multi-Currency LC Exposure will be fully covered by the Multi-Currency Revolving Commitments of the non-Defaulting Multi-Currency Revolving Lenders and/or cash collateral provided by the Borrowers in accordance with Section 2.20(c), and participating interests in any such issued, amended, renewed or extended Multi-Currency Letter of Credit will be allocated among the non-Defaulting Multi-Currency Revolving Lenders in a manner consistent with Section 2.20(c)(ii) (and such Defaulting Lender shall not participate therein). If In the event that (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which any a Revolving Lender is, directly or indirectly, a Subsidiary Parent shall occur following the date hereof Escrow Date and for so long as such event Bankruptcy Event shall continue or (ii) any the Swingline Lender (solely in the case of a Revolving Lender Parent of a Dollar Revolving Lender) or any LC 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, no the Swingline Lender shall not be required to fund any Swingline Loan and no LC such Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may beapplicable, shall have entered into arrangements with Borrower the Borrowers or such the applicable Revolving Lender, satisfactory to such the Swingline Lender or such LC Issuing Bank, as the case may beapplicable, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, Borrowerthe Borrowers, the Swingline Lenders Lender (solely in the case of a Defaulting Lender that is a Dollar Revolving Lender) and the LC each applicable Issuing Banks Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such the applicable Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure 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 (other than Swingline Loans) 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 Proportionate ShareDollar Applicable Percentage or Multi-Currency Applicable Percentage, as the case may be; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers 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 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 (Allegion PLC), Credit Agreement (Allegion PLC)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment and Tranche A Term Loan Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.11(a);
2.11.2 (b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.99.02); provided, except that this clause (ib) shall not apply to the Commitment(s) vote of any a Defaulting Lender may not be increased in the case of an amendment, waiver or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without other modification requiring the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each Lender affected Lender that by its terms affects any Defaulting Lender more adversely than the other or directly affected Lenders shall require the consent of such Defaulting Lenderthereby;
2.11.3 (c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Revolving Credit Lenders in accordance with their respective Proportionate Shares Applicable Percentages but only to the extent the sum of all non-Defaulting Revolving Credit Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Revolving Credit Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.05(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 any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.11(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Defaulting Revolving Credit Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.11(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable 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 LC the Issuing Bank Lender or any other Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank Lender until and to the extent that such LC Exposure is reallocated and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank Lender shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Revolving Credit Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.102.19(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Revolving Credit Lenders in a manner consistent with Section 2.2.7 2.19(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to a Parent of any Person as to which any Revolving Credit Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC Issuing Bank Lender has a good faith belief that any Revolving Credit Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, no such Swingline Lender shall not be required to fund any Swingline Loan and no LC such Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing BankLender, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing BankLender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the each Swingline Lenders Lender and the LC each Issuing Banks Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Revolving Credit Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such date such Lender shall purchase at par such of the Revolving Credit Loans of the other Revolving Credit Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Geo Group Inc), Credit Agreement (Geo Group Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender, to the extent permitted by applicable law:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.4.1 (5.2(a), and the Borrower shall not be required to pay any such fees that do not accrue; provided that any such Commitment Fee accrued on any of the Revolving Credit Commitments of a Defaulting Lender during the period prior to the time such Revolving Credit Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Revolving Credit Lender shall be a Defaulting Lender except to the extent allocable that such fee shall otherwise have been due and payable by the Borrower prior to such time
(ib) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Credit Commitment and Revolving Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, all directly and adversely affected Lenders or the Required Lenders, as applicable, or other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.912.1), except ; provided that (i) any waiver, amendment or modification requiring the Commitment(sconsent of all Lenders and (ii) the Revolving Credit Commitment of any such Defaulting Lender may not be increased or extended, or the maturity date of any of its Loans Loan made by such Defaulting Lender may not be extended, the date for the payment of any principal, interest or fee payable hereunder (other than as a result of waiving default interest) shall not be extended, the interest rate of interest on or any fees payable in respect of its Loans a Defaulting Lender’s Loan or Commitment may not be reduced decreased (except as set forth in clause (a) above or (c)(iii) below or with respect to default interest as set forth in Section 5.8(c)), and the principal amount of any principal of its the Loans held by such Defaulting Lender may not be increased, reduced or forgiven, in each case without the consent of such Defaulting Lender Lender, the Administrative Agent and (ii) the Borrower; provided that any amendment, waiver payments made with respect to such increase in such Revolving Credit Commitment shall not be subject to Sections 5.11 or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects 12.7 with respect to any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Swing Line Exposure or LC Exposure L/C Obligations exists at the time such a Revolving Credit Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline such Swing Line Exposure and LC Exposure of such Defaulting Lender L/C Obligations shall automatically be reallocated among the Revolving Credit Lenders which are non-Defaulting Lenders in accordance with their respective Proportionate Shares Revolving Credit Percentages but only to the extent the sum Revolving Credit Commitment of all any non-Defaulting Lenders’ Revolving Credit Exposures plus Lender is not exceeded by such Defaulting Lender’s Swingline Exposure Revolving Extensions of Credit (and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default existsany participations therein);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Swing Line Exposure of such Defaulting Lender (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize for if requested by the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to Lender, cash collateralize such Defaulting Lender’s LC Exposure L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 10 for so long as such LC Exposure is outstandingL/C Obligations are outstanding or until such Lender ceases to be a Defaulting Lender pursuant to Section 5.20(f);
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to clause (ii) abovethis Section 5.20(c), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 4.3 with respect to such Defaulting Lender’s LC Exposure L/C Obligations during the period such Defaulting Lender’s LC Exposure is Cash CollateralizedL/C Obligations are cash collateralized; provided that, for the avoidance of doubt, any such fees under Section 4.3 that accrued with respect to such Defaulting Lender’s L/C Obligations during the period prior to the time such Revolving Credit Lender became a Defaulting Lender and that remain unpaid shall still be due and payable to such Defaulting Lender to the extent that such fee was otherwise due and payable by the Borrower prior to such time;
(iv) if the LC Exposure L/C Obligations of the non-Defaulting Lenders is are reallocated pursuant to clause (i) abovethis Section 5.20(c), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 5.2(a) and Section 4.3 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesRevolving Credit Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is L/C Obligations are neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (i) or (ii) abovethis Section 5.20(c), then, without prejudice to any rights or remedies of any LC the Issuing Bank Lender or any Lender hereunder, all Facility Fees commitment fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Revolving Credit Commitment that was utilized by such LC ExposureL/C Obligations) and Letter letter of Credit credit fees payable under Section 2.4.2 4.3 with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to the relevant LC Issuing Bank Lender until and to the extent that such LC Exposure is reallocated L/C Obligations are cash collateralized and/or Cash Collateralized; andreallocated;
2.11.4 (d) so long as such any Revolving Credit Lender is a Defaulting Lender, no Swingline the Swing Line Lender shall not be required to fund any Swingline Swing Line Loan and no LC the Issuing Bank Lender shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender if the reallocation described in clause (c)(i) cannot or LC Issuing Bankcan only partially be effected and/or, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered if requested by the Commitments of the non-Defaulting Lenders and/or Cash Collateral Issuing Lender, cash collateral will be provided by the Borrower in accordance with Section 2.2.105.20(c), and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit or newly made Swing Line Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 5.20(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(ie) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as any Lender is a Defaulting Lender, any amount payable to such event shall continue Defaulting Lender hereunder (whether on account of principal, interest, fees or (iiotherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 12.7 but excluding Section 5.17) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any Swingline applicable requirements of law, 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 the Issuing Lender or Swing Line Lender hereunder; third, if such Defaulting Lender is a Revolving Credit Lender and so determined by the Administrative Agent or requested by the applicable Issuing Lender, to be held as cash collateral for future funding obligations of that Defaulting Lender of any LC Issuing Bank has a good faith belief that any Lender has defaulted participation in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure; fourth, as the case Borrower may berequest (so long as no Default Exists), pursuant 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 reasonably determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released pro rata in order to (x) satisfy obligations of such Defaulting Lender to fund Loans under this Agreement and (y) be held as cash collateral for funding obligations of such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.11.3 4; sixth, to the payment of any amounts owing to the Lenders or otherwise such Swingline an Issuing Lender or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, Swing Line Lender against that Defaulting Lender as the case may bea result of that Defaulting Lender’s breach of its obligations under this Agreement; seventh, to defease the payment of any risk amounts owing to it the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that 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 drawings under Letters of Credit in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans or drawings under Letters of Credit were made at a time when the conditions set forth in Section 7.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and drawings under Letters of Credit owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or drawings under Letters of Credit owed to, that Defaulting Lender hereunderuntil such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 5.20(c)(i). 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 5.20(f)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
(f) In the event that the Administrative Agent, the Borrower, the Swingline Lenders Issuing Lender and the LC Issuing Banks Swing Line Lender (as applicable) each agrees in writing that a Defaulting Lender which is a Revolving Credit Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Swing Line Exposure and LC Exposure L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Swing Line Loans) or take such other actions as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareRevolving Credit Percentage, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees, or interest at the default rate of interest set forth in Section 5.8(c), accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from 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 Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.4.1 2.03;
(except b) subject to the extent allocable second proviso to (i) the outstanding principal amount of Section 12.05, the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Commitment and Revolving Credit Exposure Commitments of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Majority Lenders or the Majority Revolving Lenders, as applicable, have taken or may take any action hereunder under this Agreement (including any consent to any amendment or waiver pursuant to Section 12.05), provided that in the case of an amendment, waiver or other modification pursuant to Section 7.9), except that (i) the Commitment(s) of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent requiring the consent of all the Lenders or each Lender affected Lender that by its terms thereby which affects any such Defaulting Lender more disproportionately and adversely than the relative to other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC Exposure Letter of Credit Liability under any of the Revolving Commitments exists at the time such a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part such Defaulting Lender’s pro rata portion of Letter of Credit Liability based on such Lxxxxx’s share of the Swingline Exposure and LC Exposure of such Defaulting Lender relevant Revolving Commitments (“L/C Exposure”) shall be reallocated among the non-Defaulting Revolving Lenders in accordance with their respective Proportionate Shares shares thereof but only to the extent (x) the sum of all non-Defaulting Revolving Lenders’ Revolving Loans under such Revolving Commitments and their Letter of Credit Exposures Liabilities thereunder plus such Defaulting Lender’s Swingline L/C Exposure and LC Exposure under such Revolving Commitments does not exceed the total of all non-Defaulting Revolving Lenders’ Commitments; provided that each Revolving Commitments under such reallocation shall be given effect only if, Revolving Commitments and (y) the conditions set forth in Section 7.03 are satisfied at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default existssuch time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the relevant Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC each Issuing Banks only Bank such Borrower’s obligations corresponding to any such Defaulting Lender’s LC remaining L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 10.01 for so long as such LC L/C Exposure is outstanding;
(iii) if Borrower Cash Collateralizes the Borrowers cash collateralize any portion of such Defaulting Lender’s LC L/C Exposure pursuant to clause (ii) aboveSection 2.10(c)(ii), no Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.08(7) with respect to such Defaulting Lender’s LC L/C Exposure during the period such Defaulting Lender’s LC L/C Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.10(c)(i), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 Sections 2.03 and 2.08(7) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable Percentages (after giving effect to such adjustment); andor
(v) if all or any portion of such Defaulting Lender’s LC L/C Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (iSection 2.10(c)(i) or (ii) above), then, without prejudice to any rights or remedies of any LC Issuing Bank or any other Lender hereunderunder this Agreement, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.08(7) with respect to such Defaulting Lender’s LC L/C Exposure shall be payable to the relevant LC such Issuing Bank until and to the extent that such LC L/C Exposure is reallocated cash collateralized and/or Cash Collateralized; andreallocated;
2.11.4 (d) so long as such any Revolving Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Revolving Lender’s then outstanding LC L/C Exposure will be 100% covered by the Revolving Commitments of the relevant non-Defaulting Revolving Lenders and/or Cash Collateral cash collateral will be provided by the relevant Borrower in accordance with Section 2.2.102.10(c), and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit shall be allocated among such non-Defaulting Revolving Lenders in a manner consistent with Section 2.2.7 2.10(c)(i) (and such Defaulting Lender shall not participate therein). If ; and
(i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (iie) any Swingline payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or any LC 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 creditmandatory, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may beat maturity, pursuant to Section 2.11.3 10.01 or otherwise otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 12.19 shall be applied at such Swingline 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 or to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such LC Defaulting Lender to any Issuing BankBank hereunder; third, to cash collateralize the Issuing Banks’ fronting exposure with respect to such Defaulting Lender in accordance with Section 2.10(c)(ii); fourth, as the case Company may be, shall have entered into arrangements with Borrower request (so long as no Default or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may beEvent of Default exists), to defease the funding of any risk to it Loan in respect of which such Defaulting Lender hereunderhas 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 Company, to be held in a 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 the Issuing Banks’ future fronting exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement in accordance with Section 2.10(c)(ii); 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 the Issuing Banks 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 or Event of Default exists, 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 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 Loans or Reimbursement Obligations 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 7.03 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations are held by the Lenders pro rata in accordance with the Commitments under the applicable Facility without giving effect to Section 2.10(c)(i). 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 2.10(e) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. In the event that the Administrative Agent, Borrower, the Swingline Lenders Company and the LC each Issuing Banks each agrees Bank agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC L/C Exposure of the Revolving Lenders under the relevant Revolving Commitments shall be readjusted to reflect the inclusion of such Lender’s relevant Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of such other Revolving Lenders as the other Lenders (other than Swingline Loans) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Shareshare of the relevant Revolving Commitments.
(f) If any Lender becomes a Defaulting Lender, then the Company shall have the right, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, to require such Lender to assign and delegate, without recourse, all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Company shall have received the prior written consent of the Administrative Agent (and if a Revolving Commitment is being assigned, the Issuing Bank) which consent shall not be unreasonably withheld, to the extent such consent would have been required pursuant to Section 12.06(b) and (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in Letters of Credit, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts). A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.
Appears in 1 contract
Samples: Credit Agreement (Iron Mountain Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.4.1 3.5;
(except to the extent allocable to (ib) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 the Commitment and Revolving Credit Aggregate Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders or the Majority Facility Lenders under any Facility have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.911.1), except provided, that (i) the Commitment(s) of any Defaulting Lender may not be increased waiver, amendment or extended, or the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (ii) any amendment, waiver or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure or LC Exposure any L/C Obligations exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the such Defaulting Lender’s Swingline Exposure and LC Exposure of such Defaulting Lender L/C Obligations shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares Revolving Percentages but only to the extent (x) the sum of all nonNon-Defaulting Lenders’ Revolving Extensions of Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure L/C Obligations does not exceed the total of all nonNon-Defaulting Lenders’ Commitments; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, Revolving Commitments and (y) no Inchoate Default or Event of Default exists;shall have occurred and be continuing at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and any unpaid Reimbursement Obligations and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure remaining L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 3.7(a) 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 (iiSection 4.16(c)(ii) aboveand Section 3.7(a), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 3.9(a) or (b) with respect to such Defaulting Lender’s LC Exposure L/C Obligations during the period such Defaulting Lender’s LC Exposure is Cash CollateralizedL/C Obligations are cash collateralized;
(iv) if the LC Exposure L/C Obligations of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.16(c)(i), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 3.9(a) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate SharesRevolving Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Exposure is L/C Obligations are neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (iSection 4.16(c)(i) or (ii) above), then, without prejudice to any rights or remedies of any LC Issuing Bank Lender or any Lender hereunder, all Facility Fees facility fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC ExposureL/C Obligations) and Letter letter of Credit credit fees payable under Section 2.4.2 3.9(a) with respect to such Defaulting Lender’s LC Exposure L/C Obligations shall be payable to the relevant LC applicable Issuing Bank Lenders until and to such L/C Obligations are cash collateralized and/or reallocated;
(d) the extent that such LC Exposure is reallocated and/or Cash Collateralized; and
2.11.4 so long as such Lender is a Defaulting Lender, no Swingline Lender shall not be required to fund any Swingline Loan and no LC each Issuing Bank Lender shall not be required to issue, amend amend, extend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.104.16(c) and Section 3.7(a), and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.2.7 4.16(c)(i) (and such Defaulting Lender Lenders shall not participate therein). If ; and
(ie) a bankruptcy in the event (as such term is defined in clause (d) and on the date that each of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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 Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, shall have entered into arrangements with Borrower or such Lender, satisfactory to such Swingline Lender or such LC Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that Administrative Agent, the Borrower, the Swingline Issuing Lenders and the LC Issuing Banks each Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure L/C Obligations of the other Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareRevolving Percentage.
Appears in 1 contract
Samples: Incremental Commitment Agreement and Second Amendment (KAR Auction Services, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) the fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 (except to the extent allocable to (i) the outstanding principal amount of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunder2.12(a);
2.11.2 (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Super-Majority Lenders, the Required Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 7.911.02), except provided that (i) any waiver, consent, amendment or modification otherwise requiring the Commitment(sconsent of such Lender or each affected Lender shall require the consent of such Defaulting Lender, (ii) any waiver, consent, amendment or modification requiring the consent of all Lenders shall require the consent of such Defaulting Lender (except in respect of any increases in the Maximum Facility Amount) and (iii) the Commitment of such Defaulting Lender may not be increased or extended, nor amounts owed to such Lender reduced (except as expressly provided herein), or the final maturity of any of its Loans may not be thereof extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and Lender.
(iic) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) i. all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages but only to the extent the sum of all non-Defaulting 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; provided that each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) . if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one Banking (1) Business Day following notice by the Administrative Agent (x) firstAgent, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2.10 2.06(j) 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 any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) . if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable Percentages; and
(v) 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 clauses (i) or (ii) above, then, without prejudice to any rights or remedies of any LC the Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender pursuant to Section 2.4.1 (solely with respect to the portion letter of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit credit fees payable under Section 2.4.2 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Exposure is reallocated cash collateralized and/or Cash Collateralizedreallocated; and
2.11.4 (d) so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend amend, or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the case may be, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.102.20(c), and any participating interests in any 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 2.2.7 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as such term is defined in clause (d) of the definition of “Defaulting Lender”) Bankruptcy Event with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary Parent shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Lender or any LC 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, no Swingline Lender shall be required to fund any Swingline Loan and no LC the Issuing Bank shall not be required to issue, amend amend, or increase any Letter of Credit, unless Borrower shall have Cash Collateralized such Lender’s Swingline Exposure or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, as the case may be, Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Swingline Lender or such LC the Issuing Bank, as the case may be, Bank to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Swingline Lenders and the LC Issuing Banks Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage.
Appears in 1 contract
