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
Sources: 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 (a) Fees shall cease to accrue on the Available Revolving Commitment of such Defaulting Lender pursuant to Section 2.4.1 2.09(a).
(except to the extent allocable to (ib) the outstanding principal amount of the Revolving The Commitments, 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 Outstanding 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 or Section 9.03), except ; provided that (ithis Section 2.18(b) 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 requiring the consent of all the Lenders other modification effecting (i) an increase or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent extension of such Defaulting Lender;’s Revolving Commitment or (ii) the reduction or excuse of principal amount of, or interest or fees payable on, such Defaulting Lender’s Loans or the postponement of the scheduled date of payment of such principal amount, interest or fees to such Defaulting Lender.
2.11.3 if (c) If any Swingline Exposure Letters of Credit or LC Exposure exists Swing Line Loans exist at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Such Defaulting Lender’s LC Exposure and LC Swing Line Exposure of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Revolving Lenders in accordance with their respective Proportionate Shares Revolving Commitment Percentages (but excluding the Revolving Commitments of all the Defaulting Lenders from both the numerator and the denominator) but only to the extent (w) the sum of all nonthe Outstanding Revolving Credits owed to all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure Lenders does not exceed the total of all nonNon-Defaulting Lenders’ Available Revolving Commitments; provided that each , (x) such reallocation does not cause the aggregate Outstanding Revolving Credits of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Credit Commitment, (y) the representations and warranties of each Loan Party set forth in the Loan Documents to which it is a party are true and correct at such time, except to the extent that any such representation and warranty relates to an earlier date (in which case such representation and warranty shall be given effect only iftrue and correct as of such earlier date), and (z) no Default shall have occurred and be continuing at the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default existssuch time;
(ii) if If the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one Banking Day two Business Days following notice by the Administrative Agent Agent, (x) first, prepay such Swingline Swing Line Loans in an amount equal to the Swing Line Lenders’ Fronting Exposure and (y) second, Cash Collateralize cash collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to Bank 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 any Letters of Credit are outstanding;
(iii) if 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 2.09(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized by the Borrower;
(iv) if the If LC Exposure Exposures of the nonNon-Defaulting Lenders is are reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Revolving Lenders pursuant to Section 2.4.2 2.09(a) and Section 2.09(b) shall be adjusted in accordance with to reflect such nonNon-Defaulting Lenders’ Proportionate SharesLC Exposure as reallocated; and
(v) if all or If 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 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 2.09(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 Defaulting 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 Available Revolving Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrower in accordance with Section 2.2.102.18(c)(ii), and the 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 shall not participate therein). If (i) The rights and remedies against a bankruptcy event (as Defaulting Lender under this Agreement are in addition to other rights and remedies that Borrower may have against such term is defined in clause (d) of the definition of “Defaulting Lender”) Lender with respect to any Person as to which funding default and that the Administrative Agent or any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof and for so long as may have against such event shall continue or (ii) Defaulting Lender with respect to 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 hereunderfunding default. In the event that the Administrative Agent, the Borrower, the Swingline Lenders Swing Line Lender 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 Total Revolving Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Available Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving 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 such outstanding Revolving Loans and funded and unfunded participations in order for Letters of Credit to be held on a pro rata basis by the Revolving Lenders (including such Lender to hold such Loans Lender) in accordance with its Proportionate Sharetheir applicable percentages, whereupon 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 LC Exposure of such Lender reallocated pursuant to the requirements above shall be reallocated back to such Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting 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 Lender’s having been a Defaulting Lender.
Appears in 5 contracts
Sources: Credit Agreement (Donnelley Financial Solutions, Inc.), Credit Agreement (LSC Communications, Inc.), Credit Agreement (Donnelley Financial Solutions, 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 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
Sources: Credit Agreement (Snap One Holdings Corp.), Incremental Agreement (Snap One Holdings Corp.), Credit 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 (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
Sources: Credit Agreement (Samson Resources Corp), Credit Agreement (Samson Resources Corp), Fourth Amendment Agreement (Samson Resources 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
Sources: Credit Agreement (Davita Inc), Credit Agreement (Davita Inc), Credit Agreement (Davita 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) 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
Sources: 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) 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
Sources: 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 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
Sources: 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 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
Sources: 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 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 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 and Outstanding Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Revolving 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 7.98.2), 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 shall require the consent of such Defaulting Lender;
2.11.3 (c) if any Swingline Exposure Swing Line Loans shall be outstanding or any LC Exposure exists Obligations shall exist 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 Company shall within one Banking Business Day following notice by Administrative the Agent (x) first, prepay such Swingline Exposure outstanding Swing Line 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 (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 outstanding;
(iiiii) if Borrower Cash Collateralizes the Company cash collateralizes any portion of such Defaulting Lender’s LC Exposure 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 2.19.4 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 Sharescash collateralized; and
(viii) 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) above, then, without prejudice to any rights or remedies of any the LC Issuing Bank 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 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 shall be payable to the relevant LC Issuing Bank Issuer 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 any Lender is a Defaulting Lender, no Swingline Lender the Issuing Bank shall not be required to fund issue or Modify any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase 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 will be 100% covered by the Commitments of the non-Defaulting Lenders and/or Cash Collateral will be cash collateral provided by Borrower the Company in accordance with Section 2.2.10, and participating interests in 2.21(c); and
(e) 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 amount payable to such Defaulting Lender shall not participate therein). If 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 11.2 but excluding Section 2.20) shall, in lieu of being distributed to such Defaulting Lender, be retained by the 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 Agent (i) a bankruptcy event first, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the LC Issuer or Swing Line Lender hereunder, (iii) third, to the funding of any Revolving Loan or the funding or cash collateralization of any participating interest in any Swing Line Loan or Facility LC in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, (iv) fourth, if so determined by the Agent and the Company, 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 Company or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Company or any Lender against such Defaulting Lender as a result of such Defaulting Lender”’s breach of its obligations under this Agreement, and (vi) sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, that if such payment is (x) a prepayment of the principal amount of any Loans or Reimbursement Obligations in respect of draws under Facility LCs with respect to any Person as to which any Lender isthe LC Issuer has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, 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 payment shall be required applied solely to fund prepay the Loans of, and Reimbursement Obligations owed to, all Revolving Lenders that are not Defaulting Lenders pro rata prior to being applied to the prepayment of any Swingline Loan and no LC Issuing Bank shall be required to issueLoans, amend or increase Reimbursement Obligations owed to, 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 3 contracts
Sources: Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp), Credit Agreement (Actuant 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 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
Sources: 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 (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 ▇▇▇▇▇▇’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 3 contracts
Sources: Credit Agreement (Infinity Natural Resources, Inc.), 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 Revolving Lender is a Defaulting Lender:
2.11.1 Facility Fees (a) commitment fees shall cease to accrue on the unused amount 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 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 (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 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 nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent that the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total sum of all nonNon-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 (xA) first, prepay the portion of such Defaulting Lender’s Swingline Exposure 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 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 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 participation fees to such Defaulting Lender pursuant to Section 2.4.2 2.12(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 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 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 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 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 Revolving 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 amend, renew or increase extend any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as the in each case may be, it 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 Revolving Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral will be cash collateral provided by the Borrower in accordance with Section 2.2.102.20(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 2.20(c)(i) (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) 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 have occurred following the date hereof and for so long as such event Bankruptcy Event shall continue or (iiy) any the Swingline Lender or any LC 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 Loan, and no LC Issuing Bank shall 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, Revolving 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 agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 3 contracts
Sources: Credit Agreement (NCR Corp), Credit Agreement (NCR Corp), Credit Agreement (NCR Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any 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
Sources: 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 (a) the Facility Fees shall cease to accrue on the Commitment Commitments and/or Loans of such Defaulting Lender pursuant to Section 2.4.1 Lender;
(except to the extent allocable to (ib) the outstanding principal amount of Commitments and 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 or any other requisite Lenders have taken or may take any action hereunder (including or under any consent to other Loan Document; provided that any amendment, waiver or other modification pursuant to Section 7.9)requiring the consent of all Lenders or all Lenders adversely 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 in accordance with the terms hereof;
(c) If the Borrower and (ii) the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any amendmentconditions set forth therein, waiver or consent requiring that Lender will, to the consent extent applicable, purchase at par that portion of all outstanding Loans of the other Lenders or each affected Lender that take such other actions as the Administrative Agent may determine to be necessary to cause the Loans to be held pro rata 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 Pro Rata Percentages and reimburse each such Lender for any costs of the type described in Section 2.16 incurred by any Lender as a result of such purchase, whereupon such Lender will cease to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such be a 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 no adjustments will be given effect only if, at made retroactively with respect to fees accrued or payments made by or on behalf of the date the applicable Borrower while that Lender becomes was 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
(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[reserved]; and
2.11.4 (e) [reserved]; and
(f) so long as such Lender is a Defaulting Lender, no Swingline any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.14) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account (for the avoidance of doubt, it is noted that any amounts retained pursuant to this Section 2.19(f) shall for all other purposes be required treated as having been paid to such Defaulting Lender) and, subject to any applicable requirements of law and the proviso at the end of this Section 2.19(f), 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 funding of any Loan in respect of which such Defaulting Lender has failed to fund any Swingline Loan and no LC Issuing Bank shall be its portion thereof as required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bankby this Agreement, as determined by the case may beAdministrative Agent, is satisfied that (iii) third, if the related exposure and Administrative Agent or the Borrower (with the consent of the Administrative Agent) so determines, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loans under this Agreement, (iv) fourth, 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 then outstanding LC Exposure will be 100% covered breach of its obligations under this Agreement, (v) fifth, so long as no Event of Default has occurred and is continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Commitments Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (vi) sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans which such Defaulting Lender has not fully funded and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such payment shall be applied solely to prepay the Loans of all non-Defaulting Lenders and/or Cash Collateral will be provided by pro rata prior to being applied to the prepayment of any Loans of any Defaulting Lender. The Borrower in accordance with Section 2.2.10, and participating interests in may terminate the unused amount of the Commitment of any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in Lender that is a manner consistent with Section 2.2.7 (and such Defaulting Lender upon not less than two Business Days’ prior notice to the Administrative Agent (which shall not participate thereinpromptly notify the Lenders thereof). If ; provided that (i) a bankruptcy event (as such term is defined in clause (d) no Event of the definition of “Defaulting Lender”) with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary Default shall occur following the date hereof have occurred and for so long as such event shall continue or be continuing and (ii) such termination shall not be deemed to be a waiver or release of any Swingline Lender claim the Borrower, the Administrative Agent or any LC Issuing Bank has Lender may have against such Defaulting Lender. The rights and remedies against, and with respect to, a good faith belief Defaulting Lender under this Section are in addition to, and cumulative and not in limitation of, all other rights and remedies 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, Borrowerany Lender or the Borrower may at any time have against, the Swingline Lenders and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused or with respect to, 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 3 contracts
Sources: 364 Day Revolving Credit Agreement (GE HealthCare Technologies Inc.), 364 Day Revolving Credit Agreement (GE HealthCare Technologies Inc.), 364 Day Revolving Credit Agreement (GE HealthCare 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 until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(a) No Defaulting Lender shall be entitled to receive any commitment fee under Section 2.10(a) for so long as any period during which such Lender is a Defaulting Lender:
2.11.1 Facility Fees Lender (and the Borrower shall cease not be required to accrue on the Commitment of pay any such fee that otherwise would have been required to have been paid to 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 The Commitment and Revolving Credit Exposure of such the Defaulting Lender shall will 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 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 the Defaulting Lender more adversely differently than the other affected Lenders shall will require the consent of such the Defaulting Lender;.
2.11.3 if (c) If any Swingline Exposure or any LC Exposure exists at the time such a Lender becomes is a Defaulting Lender Lender, then:
(i) all or any part of the such Defaulting Lender’s Swingline Exposure Participation Amount and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (x) the sum conditions set forth in Section 4.02 are satisfied at the time of all such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time) and (y) such reallocation does not cause the aggregate Revolving Credit Exposure of 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 Commitment. Subject to Section 9.18, no reallocation hereunder shall constitute a waiver or release of all non-any claim of any party hereunder against a Defaulting Lenders’ Commitments; provided 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 shall, without prejudice to any right or remedy available to it hereunder or under law, within one Banking Day five Business Days following notice by the Administrative Agent given no later than 12:00 Noon, New York City time (x) first, prepay such the Swingline Exposure Participation Amount of the Defaulting Lender to the Swingline Lender 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(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) abovethis Section 2.20(c), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.10(b)(i) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is Cash Collateralized;
(iv) cash collateralized; if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 2.20(c)(i), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.10(a) and Section 2.10(b)(i) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable Percentages with the balance of such fee, if any, being retained by the Borrower for its own account or, to the extent any LC Exposure shall then be outstanding, being payable to the Issuing Bank for its own account to the extent such fee relates to the amount of such LC Exposure or, to the extent any Swingline Participation Amount shall then be outstanding, being payable to the Swingline Lender for its own account to the extent such fee relates to the amount of such Swingline Participation Amount; andor
(viv) 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 Issuing Bank or any Lender hereunder, all Facility Fees the 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 pursuant to Section 2.4.2 with respect to such Defaulting Lender’s LC Exposure 2.10(b)(i) 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 any Lender is a Defaulting Lender, no (i) 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, Loans 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 participations therein 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 fully allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 clause (c)(i) above and such the 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 therein 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 extend, renew or increase any Letter of CreditCredit unless it is satisfied that the participations in the L/C Obligations related to any existing Letters of Credit as well as the new, unless Borrower extended, renewed or increased Letter of Credit has been or will be fully allocated among the non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) above and such Defaulting Lender shall have Cash Collateralized not participate therein except to the extent such Defaulting Lender’s participation has been or will be fully cash collateralized in accordance with Section 2.20(c)(ii).
(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 2.16(c) but excluding Section 2.17(b)) will, 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 each Issuing Bank and the Swingline Exposure or LC ExposureLender hereunder, (iii) third, to cash collateralize 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, as the case Borrower may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing Bank, request (so long 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 beno Default exists), to defease the funding of any risk to it Loan 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, (v) 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, in accordance with Section 2.20(c)(ii), (vi) sixth, pro rata, to the payment of any amounts then owing to the Borrower or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Borrower or any Lender against such Defaulting Lender as a result of such 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 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 and 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 LC Obligations and Swingline Loans are held by the Lenders and the LC Issuing Banks each agrees that pro rata in accordance with their Applicable Percentages without giving effect to Section 2.20(c)(i). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender has adequately remedied all matters that caused are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section shall be deemed paid to and redirected by such Defaulting Lender, and each Lender to be irrevocably consents hereto.
(f) If any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to be replaced in accordance with Section 2.17(b).
(g) In the event that the Administrative Agent, the Borrower, each Issuing Bank and the Swingline Exposure and LC Exposure Lender each agrees in writing that a Defaulting Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the Lenders shall be readjusted effective date specified in such notice and subject to reflect any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the inclusion of such Lender’s Commitment and on such date such Lender shall extent applicable, purchase at par such that portion of the Loans of the other Lenders (other than Swingline Loans) or take such other 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 Swingline Loans to hold such Loans be held pro rata by the Lenders in accordance with its Proportionate Sharetheir Applicable Percentages (without giving effect to Section 2.20(c)(i)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower 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 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 3 contracts
Sources: Master Assignment Agreement and Fifth Amendment to Third Amended and Restated Credit Agreement (Natural Resource Partners Lp), Credit Agreement (Natural Resource Partners Lp), Second Amendment to Third Amended and Restated Credit Agreement
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
Sources: 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 (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 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, the Required Lenders, the Majority Revolving Lenders, the Majority Term 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 Revolving Commitment (i.e., the Revolving 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 Revolving Lenders pro rata in accordance with their respective Proportionate Shares but only Revolving Commitment Percentages; provided that (A) each Non-Defaulting Revolving Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Commitment Percentage of the Revolving Commitment of such Non-Defaulting Revolving Lender as in effect at the time of such reallocation and (B) neither such reallocation nor any payment by a Non-Defaulting Revolving 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 Revolving 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 Revolving 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 Revolving Lenders’ Revolving 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 Revolving 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 Revolving 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 such Lender reallocated pursuant to Section 2.15(c) shall be reallocated back to 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 ▇▇▇▇▇▇’s 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 and each Issuing Bank as a result of any final judgment of a court of competent jurisdiction obtained by any Lender and such 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 payment is a payment of the principal amount of any Loans or Unpaid Drawings, such payment shall be readjusted applied solely to reflect pay the inclusion of such 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 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 3.7 shall be deemed paid to and redirected by that Defaulting Lender’s Commitment , and on such date such each 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 Shareirrevocably consents hereto.
Appears in 3 contracts
Sources: Credit Agreement (Mach Natural Resources Lp), Credit Agreement (Mach Natural Resources Lp), 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) 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
Sources: Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp), Credit Agreement (Actuant 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, 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
Sources: 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 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
Sources: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity 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 (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
Sources: 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) 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
Sources: 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 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
Sources: 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 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 adversely 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 (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 a Revolving Lender becomes a Defaulting Lender Lender, then:
(i) [reserved];
(ii) 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 2.05(e) and 2.05(f)) of such Defaulting Lender shall be reallocated among the non-Defaulting Revolver Lenders in accordance with their respective Proportionate Shares Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting Revolving Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total sum of all non-Defaulting Revolving Lenders’ CommitmentsRevolving Commitments and (y) such reallocation does not cause the aggregate Revolving Exposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Revolving Commitment; provided that, subject to Section 9.18, 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 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;
(iiiii) if the reallocation described in clause (iii) 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 Borrower’s obligations corresponding to the portion of such Defaulting Lender’s 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 LC Exposure is outstanding;
(iiiiv) if Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure is cash collateralized pursuant to clause (iii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(v) if any portion of the LC Exposure of such Defaulting Lender is reallocated 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 Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Proportionate Sharesreallocation;
(vi) [reserved]; and
(vvii) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor Cash Collateralized cash collateralized pursuant to clause (iii) or (iiiii) 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 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 and/or Cash Collateralizedcash collateralized; and
2.11.4 (d) so long as such 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 amend, renew 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 Defaulting Lender’s then outstanding LC Exposure will be 100% fully covered by the Revolving Commitments of the non-Defaulting Revolving Lenders and/or Cash Collateral will be cash collateral provided by the Borrower in accordance with Section 2.2.102.20(c), and participating interests in any newly made Swingline Loan such issued, amended, renewed or any newly issued or increased extended Letter of Credit shall will be allocated among the non-Defaulting Revolving Lenders in a manner consistent with Section 2.2.7 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 Amendment and Restatement Effective Date and for so long as such event Bankruptcy Event shall continue or (ii) any Swingline 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 Swingline Lender shall 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 be, Bank shall have entered into arrangements with Holdings and the Borrower or such the applicable Revolving Lender, 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, BorrowerHoldings, the Swingline Lenders Borrower 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 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 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 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 ▇▇▇▇▇▇’s having been a Defaulting Lender.
Appears in 3 contracts
Sources: Credit Agreement (Resideo Technologies, Inc.), Credit Agreement (Resideo Technologies, Inc.), Credit Agreement (Resideo 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) 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
Sources: 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 (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 3 contracts
Sources: 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 (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 7.914.1), 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 Letter of Credit Exposure or LC Designated Acquisition Swingline 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 Designated Acquisition 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 14.23, neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim that the Borrower, the Administrative Agent, any Issuing Lender, any Designated Acquisition 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 Designated Acquisition 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 Designated Acquisition 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 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 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 applicable Issuing Bank Lender until and to the extent that such LC Letter of Credit Exposure is reallocated Cash Collateralized and/or reallocated;
(d) (1) the Issuing Lender will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless such Issuing Lender is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash CollateralizedCollateralization or a combination thereof in accordance with the requirements of Section 2.16(c) above or otherwise in a manner reasonably satisfactory to such Issuing Lender; and
2.11.4 so long as such Lender is a Defaulting Lender, (i) no Designated Acquisition Swingline Lender shall will be required to fund any Designated Acquisition Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase any Letter of Credit, Loans unless such Designated Acquisition 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 Revolving Credit Commitments of the nonNon-Defaulting Lenders and/or Cash Collateral will be provided by Borrower or a combination thereof in accordance with the requirements of Section 2.2.102.16(c) above.
(e) If the Borrower, 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 applicable Designated Acquisition Swingline Lenders Lender and the LC each applicable 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 and LC Exposure Administrative Agent will so notify the parties hereto, whereupon, 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 that portion of the outstanding Revolving Credit Loans of the other Revolving Credit Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause such outstanding Revolving Credit Loans and funded and unfunded participations in Letters of Credit to be held on a pro rata basis by the Revolving Credit Lenders (other than Swingline Loansincluding such Lender) as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with their applicable percentages, whereupon 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 and Designated Acquisition Swingline Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(c) shall be reallocated back to such Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that ▇▇▇▇▇▇ was a Defaulting 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 ▇▇▇▇▇▇’s having been a Defaulting Lender; and
(f) Any payment of principal, interest, fees or other amounts received by an Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 12 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 each Administrative Agent hereunder; second, in the case of a Revolving Credit Lender, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to each Issuing Lender and each Designated Acquisition 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 Proportionate Shareportion 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 pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize, in accordance with Section 3.8, the Issuing Lender’s potential future fronting exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement; fifth, to the payment of any amounts owing to the Lenders, the Issuing Lenders or the Designated Acquisition Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Issuing Lender or such Designated Acquisition 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 or any of its Restricted Subsidiaries pursuant to any Secured Hedging Agreement with such Defaulting Lender as certified by an Authorized Officer of the Borrower to the Administrative Agent (with a copy to the Defaulting Lender) prior to such date of payment; 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 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 such payment is a payment of the principal amount of any Loans or a payment of any 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 2.16(f). 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 3.8 shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 3 contracts
Sources: Credit Agreement (Baldwin Insurance Group, Inc.), Credit Agreement (Baldwin Insurance Group, Inc.), Credit Agreement (Baldwin Insurance 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 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
Sources: 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 Fees (a) fees set forth in Section 2.14(a) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 Lender;
(except b) to the extent allocable to permitted by applicable law, (i) any voluntary prepayment of Revolving Credit Loans shall, if the outstanding principal amount Company so directs at the time of making such voluntary prepayment, be applied to the Revolving Credit Loans funded by it of other Lenders as if such Defaulting Lender had no Revolving Credit Loans outstanding and the Revolving Credit Exposure of such Defaulting Lender were zero, and (ii) its outstanding Swingline Exposure and/or LC Exposure for which any mandatory prepayment of the Revolving Credit Loans shall, if the Company so directs at the time of making such mandatory prepayment, be applied to the Revolving Credit Loans of other Lenders, but not to the Revolving Credit Loans of such Defaulting Lender, it being understood and agreed that the Company shall be entitled to retain any portion of any mandatory prepayment of the Revolving Credit Loans that is not paid to such Defaulting Lender has provided Cash Collateral to solely as a result of the relevant Swingline Lender or LC Issuing Bank hereunderoperation of the provisions of this clause (b);
2.11.2 (c) 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 7.910.02), 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 (d) 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-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 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 does not exceed the total of the Commitments of all non-Lenders that are not Defaulting Lenders’ Commitments; provided that each Lenders and (z) the conditions set forth in Section 5.02 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, Borrower the Borrowers 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 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 2.08(l) 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 this paragraph (ii) aboved), Borrower the Borrowers shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 2.14(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 this paragraph (i) aboved), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 2.14(a) and Section 2.14(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate Shares; andRevolving Percentages;
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause this paragraph (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 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 fees payable in connection with any Letters of Credit fees payable or Acceptances under Section 2.4.2 Sections 2.14(b) and 2.14(d) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC applicable Issuing Bank Lenders 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 10.16, no reallocation pursuant to this paragraph (d) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that ▇▇▇▇▇▇ 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;
(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 CreditCredit or create any Acceptance, 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 Borrowers in accordance with Section 2.2.10paragraph (d) of this Section, and participating interests in any newly made Swingline Loan or any such newly issued or increased Letter of Credit or Acceptance shall be allocated among non-Defaulting Lenders in a manner consistent with paragraph (d)(i) of this Section 2.2.7 (and such Defaulting Lender Lenders shall not participate therein). If ; and
(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 Borrowers and the LC Issuing Banks each agrees Lenders 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 ShareRevolving Percentage.
Appears in 3 contracts
Sources: Second Amendment (1 800 Flowers Com Inc), First Amendment (1 800 Flowers Com Inc), Credit Agreement (1 800 Flowers Com 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 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
Sources: 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 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
Sources: Credit Agreement (Xl Group PLC), Credit Agreement (Xl Group PLC), Credit Agreement (Xl Group 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, 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
Sources: 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 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
Sources: 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 (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.
(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 Majority Lenders or the Required Lenders Lenders, as applicable, 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 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 (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, (2) the conditions set forth in Section 6.03 are satisfied at such time and (3) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure plus its reallocated share of such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment; provided that, subject to Section 12.22, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that 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 (iSection 4.03(c)(iii)(A) above cannot, or can only partially, be effected, then the Borrower shall within one Banking Business Day following notice by Administrative the Agent (x) first, prepay such 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) aboveSection 4.03(c)(iii)(A)) 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 any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) aboveSection 4.03(c)(iii)(B), then the Borrower shall not be required to pay 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 Collateralized;
(ivD) if the LC Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.03(c)(iii)(A), 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 reallocated nor Cash Collateralized nor reallocated pursuant to clause (iSection 4.03(c)(iii)(A) or (ii) aboveSection 4.03(c)(iii)(B), then, without prejudice to any rights or remedies of any 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). 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 Shareand/or reallocated.
Appears in 3 contracts
Sources: Restructuring Support and Lock Up Agreement (Legacy Reserves Inc.), Restructuring Support and Lock Up Agreement (Legacy Reserves Inc.), Credit Agreement (Legacy Reserves Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement 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
Sources: 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 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
Sources: 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 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
Sources: 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 (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
Sources: Credit Agreement (QR Energy, LP), Credit Agreement (QR Energy, 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 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
Sources: 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 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
Sources: 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 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
Sources: 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
Sources: 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 (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
Sources: Credit Agreement (Parsley Energy, Inc.), Credit Agreement (Parsley 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
Sources: 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 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
Sources: Credit Agreement (Antero Resources LLC), Credit Agreement (Antero Resources Finance 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 (a) Fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.4.1 2.12(a).
(except to the extent allocable to (ib) the outstanding principal amount of the 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 requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.910.02), except ; provided that (i) the Commitment(s) no Commitment 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 extended without the consent of such Defaulting Lender and Lender’s consent, (ii) no waiver, amendment or other modification may reduce the amount of principal owing to a Defaulting Lender without such Defaulting Lender’s consent and (iii) any amendmentwaiver, waiver amendment or consent other 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 (c) If any Swingline Exposure or LC Exposure exists or any Foreign Currency Loans are outstanding at the time such a Revolving Lender becomes a Defaulting Lender then:
then (i) all or any part of the such Swingline Exposure, LC Exposure and LC Exposure Foreign Currency Participating Interest of such Defaulting Lender shall be reallocated among the nonRevolving Lenders that are Non-Defaulting Lenders in accordance with their respective Proportionate Shares Applicable Percentages but only to the extent (x) the sum of all nona Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure, LC Exposure and LC Exposure Foreign Currency Participating Interest does not exceed the total of all nonsuch Non-Defaulting Lenders’ Commitments; provided that each Revolving Commitments and (y) the conditions set forth in Section 4.02 are satisfied at such reallocation time. In the case of any such reallocation, the fees payable to the Revolving Lenders pursuant to Section 2.12(a) and Section 2.12(b)(i) and the Foreign Currency Loan Participants pursuant to Section 2.12(e) shall be given effect only if, at the date the applicable Lender becomes a adjusted in accordance with such Non-Defaulting Lender, no Inchoate Default or Event of Default exists;Lenders’ Applicable Percentages.
(iid) if If the reallocation described in clause (ic) above cannot, or can only partially, be effected, the Parent Borrower shall shall, within one Banking Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and Exposure, (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 (ic) 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;
outstanding and (iiiz) if third, cash collateralize for the benefit of the Fronting Lender, the obligations of the Parent Borrower Cash Collateralizes and any portion of Foreign Subsidiary Borrower corresponding to such Defaulting Lender’s LC Exposure Foreign Currency Participating Interest (after giving effect to any partial reallocation pursuant to clause (iic) above) for so long as the circumstances giving rise to such obligation to provide such cash collateral remain relevant (which cash collateralization requirement shall be satisfied by the Parent Borrower depositing such cash collateral into an account opened by the Administrative Agent). In the case of any such cash collateralization, the Parent 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)(i) (with respect to such Defaulting Lender’s LC Exposure during the period Exposure) or Section 2.12(e) (with respect to such Defaulting Lender’s Foreign Currency Participating Interest) for so long as such Defaulting Lender’s LC Exposure is Cash Collateralized;cash collateralized.
(ive) 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 If any portion of such Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause paragraph (ic) or (iid) above, then, without prejudice to any rights or remedies of any LC the Issuing Bank or any Revolving Lender that is not a Defaulting 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)(i) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant LC Issuing Bank until such LC Exposure is cash collateralized and/or reallocated pursuant to paragraph (c) and (d) above.
(f) If all or any portion of such Defaulting Lender’s Foreign Currency Participating Interest is neither cash collateralized nor reallocated pursuant to paragraph (c) or (d) above, then, without prejudice to any rights or remedies of the Fronting Lender or any Revolving Lender that is not a Defaulting Lender hereunder, all participation fees payable under Section 2.12(e) with respect to such Defaulting Lender’s Foreign Currency Participating Interest that has not been reallocated or cash collateralized shall be payable to the Fronting Lender until and to the extent that such LC Exposure Foreign Currency Participating Interest is cash collateralized and/or reallocated and/or Cash Collateralized; andpursuant to paragraph (c) and (d) above.
2.11.4 so (g) 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 it is satisfied that the related exposure will be 100% covered by the Revolving Commitments of the Revolving Lenders that are not Defaulting Lenders and/or cash collateral will be provided by the Parent Borrower in accordance with paragraph (c) above, and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among Revolving Lenders that are not Defaulting Lenders in a manner consistent with paragraph (c) above (and Defaulting Lenders shall not participate therein).
(h) So long as any Lender or LC Issuing Bankis a defaulting Lender, as the case may be, Fronting Lender shall not be required to fund any Fronted Foreign Currency Loan unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure Foreign Currency Participating Interest will be 100% covered by the Revolving Commitments of the non-Revolving Lenders that are not Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Parent 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 paragraph (and such Defaulting Lender shall not participate therein). If c) above.
(i) In the event that (i) a bankruptcy Lender becomes a Defaulting Lender as a result of the occurrence of any event (as such term is defined described in clause (d) of the definition of the term “Defaulting Lender”) ” with respect to any Person as to which any Lender is, directly or indirectly, a Subsidiary shall occur following the date hereof such Lender’s parent company and for so long as such event shall continue or (ii) any the Swingline Lender or any LC Lender, the Issuing Bank or the Fronting Lender 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 Loan, the Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, and the Fronting Lender shall not be required to fund any Fronted Foreign Currency Loan, unless Borrower shall have Cash Collateralized such the Swingline Lender’s Swingline Exposure , the Issuing Bank or LC Exposure, as the case may be, pursuant to Section 2.11.3 or otherwise such Swingline Lender or such LC Issuing BankFronting Lender, as the case may be, shall have entered into arrangements with Holdings and the Parent Borrower or such Revolving Lender satisfactory to the Swingline Lender, the Issuing Bank or the Fronting Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder.
(j) In the event that (x) a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender, the Issuing Bank or the Fronting Lender has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, the Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, and the Fronting Lender shall not be required to fund any Fronted Foreign Currency Loan, unless the Swingline Lender, the Issuing Bank or the Fronting Lender, as the case may be, shall have entered into arrangements with Holdings and the Parent 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 Lender hereunder. .
(k) In the event that the Administrative Agent, the Parent Borrower, the Swingline Lenders Issuing Bank, the Fronting Lender 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 Revolving 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 (i) the Revolving Loans of the other Revolving Lenders (other than Swingline Loans and (other than in the case of any Defaulting Lender that is a Foreign Currency Lender) Foreign Currency 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 and (ii) the Foreign Currency Participating Interests of the other Revolving Lenders as the Administrative shall determine may be necessary in order for such Lender to hold such in Foreign Currency Participating Interests accordance with its ratable share thereof.
Appears in 2 contracts
Sources: Incremental Facility Agreement (Trimas Corp), Credit Agreement (Trimas 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 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
Sources: 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 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
Sources: Credit Agreement (Iron Mountain Inc), Credit Agreement (Iron Mountain 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
Sources: Credit Agreement (Manitowoc Foodservice, Inc.), Escrow Agreement (Manitowoc Foodservice, Inc.)
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
Sources: Credit Agreement (Eaton Vance Corp), Credit Agreement (Eaton Vance 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, 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
Sources: 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 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
Sources: Credit Agreement (LKQ Corp), Amendment and Restatement Agreement (LKQ Corp)
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
Sources: Credit Agreement (Universal Health Services Inc), Credit Agreement (Universal Health 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) 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
Sources: Credit Agreement (RE/MAX Holdings, Inc.), Credit Agreement (RE/MAX Holdings, Inc.)
Defaulting Lenders. Notwithstanding any other provision of this Agreement or any other 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 Fees (a) within thirteen (13) Business Days following the written request of the Administrative Agent or any Issuing Lender (with a copy to the Administrative Agent), the Company shall cease Cash Collateralize the Issuing Lender’s Fronting Exposure with respect to accrue on such Defaulting Lender;
(b) the Commitment non-use fee of such Defaulting Lender pursuant to Section 2.4.1 (except to 5.1 and the extent allocable to (i) the outstanding principal amount Letter of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for which Credit fees of such Defaulting Lender pursuant to Section 5.2 shall cease to accrue, provided, that with respect to any Letter of Credit fee not required to be paid to any Defaulting Lender, the Company shall pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letter of Credit Obligations that has provided Cash Collateral been reallocated to the relevant Swingline such Non-Defaulting Lender or LC Issuing Bank hereunder)pursuant to clause (d) below;
2.11.2 (c) the Commitment and Revolving Credit Exposure Commitments of such Defaulting Lender shall not be included in determining whether the Required 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 7.9), 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 Lenderhereunder;
2.11.3 if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then:
(id) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender Lender’s participation in Letter of Credit Obligations shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Pro Rata Shares (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause the sum aggregate exposure of all nonany 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 Commitment. No reallocation hereunder shall constitute a waiver or release of all non-any claim of any party hereunder against a Defaulting Lenders’ Commitments; provided Lender arising from that each such reallocation shall be given effect only if, at the date the applicable Lender becomes L▇▇▇▇▇ 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;
(iie) if the reallocation described in clause (id) 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, thenCompany shall, without prejudice to any rights right or remedies of any LC remedy available to it hereunder or under law, Cash Collateralize the Issuing Bank or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Lender’s Fronting Exposure; and
(f) each Defaulting Lender pursuant shall indemnify Administrative Agent and each Non-Defaulting Lender from and against any and all loss, damage or expenses, including but not limited to Section 2.4.1 (solely with respect to the portion reasonable attorneys’ fees and funds advanced by Administrative Agent or by any Non-Defaulting Lender, on account of such a Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit fees payable under Section 2.4.2 with respect failure 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 timely 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 its pro rata share 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 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 (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 otherwise perform 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 the 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 hereunderDocuments. In the event that Administrative Agent, Borrower, the Swingline Lenders and the LC Issuing Banks Company 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 Commitments 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) Lenders, if any, as Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate Pro Rata Share, 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; 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 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 L▇▇▇▇▇’s having been a Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (Andalusian Credit Company, LLC), Credit Agreement (Andalusian Credit Company, 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 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 Tranche A Revolving Commitment or, Tranche B Commitment or Tranche C Commitment and U.S. Revolving Credit Exposure, Canadian Revolving Exposure or, Tranche B Exposure or Tranche C Exposure, as applicable, of such Defaulting Lender shall not be included in determining whether all Lenders, all affected 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 7.99.02); 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 Revolving Lenders or each affected Revolving Lender that by its terms which affects any such Defaulting Lender more adversely differently than the other affected Revolving 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 an Applicable Lender becomes a Defaulting Lender then:
(i) all or any part of the such Swingline Exposure and LC Exposure of such Applicable Defaulting Lender with respect to the Borrowers within the applicable Borrower Group shall be reallocated among the non-Applicable Tranche A Lenders that are not Defaulting Lenders with respect to such Borrower Group in accordance with their respective Proportionate Shares Applicable Percentages (excluding, for purposes of calculating the Applicable Percentages, the Commitments and Loans of the Applicable Defaulting Lender) but only to the extent (x) the sum of all non-Applicable Defaulting Lenders’ U.S. Revolving Credit Exposures or Canadian Revolving Exposures, as applicable, plus such Applicable Defaulting Lender’s Swingline Exposure and LC Exposure with respect to such Borrower Group does not exceed the lesser of the total of the Tranche A Revolving Commitments of all non-the Applicable Tranche A Lenders that are not Defaulting Lenders’ CommitmentsLenders such Borrower Group and the U.S. Borrowing Base or Canadian Borrowing Base, as applicable, 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 Borrowers within the applicable Borrower Group shall within one Banking Day three (3) Business Days following notice by Administrative the Agent (x) first, prepay such the Swingline Exposure of such Applicable Defaulting Lender with respect to such Borrower Group and (y) second, Cash Collateralize for the benefit of the LC Issuing Banks only Borrower’s obligations corresponding to cash collateralize such Applicable Defaulting Lender’s LC Exposure with respect to such Borrower Group (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 Borrowers within a Borrower Cash Collateralizes Group cash collateralize any portion of such Applicable Defaulting Lender’s LC Exposure with respect to such Borrower Group pursuant to clause (ii) abovethis Section 2.28(c), the Borrowers within such Borrower Group shall not be required to pay any Letter of Credit fees to such Applicable Defaulting Lender pursuant to Section 2.4.2 2.12(b) with respect to such Applicable Defaulting Lender’s LC Exposure to such Borrowers during the period to the extent such Applicable Defaulting Lender’s LC Exposure is Cash Collateralizedcash collateralized;
(iv) if the LC Exposure of the non-Applicable Defaulting Lenders Lender with respect to the Borrowers within a Borrower Group is reallocated pursuant to clause (i) abovethis Section 2.28(c), then the Letter of Credit fees payable to the non-Applicable Defaulting Lenders pursuant to Section 2.4.2 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Applicable Defaulting Lenders’ Proportionate SharesApplicable Percentages (excluding, for purposes of calculating the Applicable Percentages, the Commitments and Loans of the Applicable Defaulting Lender); andor
(v) if all or any portion of such Applicable Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (i) or (ii) abovethis Section 2.28(c), 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 fees payable under Section 2.4.2 2.12(b) with respect to such Applicable 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 (d) so long as such any Applicable Lender is a Defaulting Lender, no the Applicable Swingline Lender shall not be required to fund any Swingline Loan and no LC the Applicable Issuing Bank Banks 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 Borrower Group Commitments of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by the Borrowers within such Borrower Group in accordance with Section 2.2.102.28(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 to such Borrower Group in a manner consistent with Section 2.2.7 2.28(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 isAgent, directly or indirectlythe Borrower Agent, a Subsidiary shall occur following the date hereof Applicable Issuing Banks and for so long as such event shall continue or (ii) any the Applicable 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 Applicable Tranche A Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the other Applicable Tranche A Lenders shall be readjusted to reflect the inclusion of such Lender’s the Tranche A Revolving Commitment of the Applicable Tranche A Lender that previously was a Defaulting Lender and on such date such Applicable Tranche A Lender shall purchase at par such of the Loans of the other Applicable Tranche A Lenders (other than Swingline Loans) as Administrative the Agent shall determine may be necessary in order for such Applicable Tranche A Lender to hold such Loans in accordance with its Proportionate ShareApplicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (ATD Corp), Credit Agreement (ATD 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 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
Sources: 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 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 No Defaulting Lender shall not be included in determining whether the Required Lenders have taken any right to approve or may take any action hereunder (including any consent to disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders, all US Lenders or each affected Lender may be effected with the consent of the applicable Lenders other modification pursuant to Section 7.9than Defaulting Lenders), except that (i) the Commitment(s) Commitment 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 extended without the consent of such Defaulting Lender and (ii) any amendmentwaiver, waiver amendment or consent modification requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more disproportionately adversely than the relative to other affected Lenders shall require the consent of such Defaulting Lender;
2.11.3 if . Notwithstanding any Swingline Exposure provision herein to the contrary, the Administrative Agent and the US Borrower may amend, modify or LC Exposure exists at the time supplement this Agreement or any other Loan Document to cure or correct administrative errors or omissions, any ambiguity, omission, defect or inconsistency or to effect administrative changes, and such Lender becomes a Defaulting Lender then:
amendment shall become effective without any further consent of any other party to such Loan Document so long as (i) all such amendment, modification or supplement does not adversely affect the rights of any part US Lender or other holder of Obligations in any material respect and (ii) the US Lenders shall have received at least three Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within three Business Days of the Swingline Exposure and LC Exposure date of such Defaulting Lender shall be reallocated among notice to the non-Defaulting US Lenders, a written notice from the Required Lenders stating that the Required US Lenders object to such amendment, modification or supplement. Notwithstanding anything herein to the contrary, as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with their respective Proportionate Shares but only this Section, it shall not be necessary to obtain the extent the sum consent or approval 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 ifany Lender that, 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 upon 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) aboveamendment, 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) aboveamendment and restatement or other modification, 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 no 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 or outstanding Loans so long as such Lender is a Defaulting Lenderreceives payment in full of the principal of and interest accrued on each Loan made by, no Swingline Lender shall be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issueall other amounts owing to, amend or increase any Letter of Credit, unless such Swingline Lender or LC Issuing Bank, as accrued for 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 account of such Lender hereunder. In the event that Administrative Agent, Borrower, the Swingline Lenders under this Agreement and the LC Issuing Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused other Loan Documents at the time such Lender to be a Defaulting Lenderamendment, then the Swingline Exposure amendment 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 restatement or 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 Sharemodification becomes effective.
Appears in 2 contracts
Sources: Credit Agreement (Schnitzer Steel Industries Inc), Credit Agreement (Schnitzer Steel 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 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
Sources: 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 (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
Sources: Credit Agreement (Sitio Royalties Corp.), Credit Agreement (Desert Peak Minerals 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, 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
Sources: 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 (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
Sources: 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
Sources: 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 (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
Sources: Credit Agreement (Vine Energy Inc.), Credit Agreement (Vine 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) 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
Sources: 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 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
Sources: 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 (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
Sources: 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 shall cease to accrue on the Commitment of (a) such Defaulting Lender shall not be entitled to receive any commitment fee pursuant to Section 2.4.1 2.09(a) for any period during which it is a Defaulting Lender (except and the Company shall not be required to the extent allocable pay any such fee that would otherwise have been required 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 have been paid to such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunderLender);
2.11.2 (b) the Commitment Commitments and Revolving Credit Exposure Exposures 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 7.99.02), ; except that (i) the Commitment(s) Commitments 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 extended without the consent of such Defaulting Lender and (ii) any amendmentwaiver, waiver amendment 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; and
(c) with respect to any Several Letter of Credit and/or the L/C Obligations under the applicable Tranche of such Defaulting Lender with respect thereto,
(i) such Defaulting Lender shall not be entitled to receive any Letter of Credit fee pursuant to Section 2.09(b) for any period during which it is a Defaulting Lender (and (except as provided in clause (c)(iii) below) the Company shall not be required to pay any such fee that would otherwise have been required to have been paid to such Defaulting Lender);
2.11.3 if (ii) subject to the condition that no Default has occurred and is continuing, with respect to any Swingline Exposure or LC Exposure exists Several Letter of Credit outstanding at the time such Lender becomes a Defaulting Lender then:
(other than any Several Letter of Credit with respect to which another Lender has agreed to act as the Limited Fronting Lender for such Defaulting Lender), with the consent of the beneficiary thereunder to the extent required by the terms thereof or under applicable Law, (i) all or any part portion of the Swingline Exposure and LC Exposure of L/C Obligations held by such Defaulting Lender under the applicable Tranche shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares NAIC Tranche Applicable Percentages or Non-NAIC Tranche Applicable Percentages, as the case may be, but only to the extent that (A) the sum of all nonthe aggregate NAIC Tranche Credit Exposure or Non-NAIC Tranche Credit Exposure, as the case may be, of Non-Defaulting Lenders plus the Outstanding Amount of the L/C Obligations held by such Defaulting Lender under such Tranche shall not exceed the total NAIC Tranche Commitments or Non-NAIC Tranche Commitments, as the case may be, of the Non-Defaulting Lenders (except as provided in Section 2.20(k) for Limited Fronting Lenders) and (B) the aggregate NAIC Tranche Credit Exposure or Non-NAIC Tranche Credit Exposure, as the case may be, of each Non-Defaulting Lender under such Tranche shall not exceed the respective NAIC Tranche Commitment or Non-NAIC Tranche Commitment of such Non-Defaulting Lender (except as provided in Section 2.20(k) if such Non-Defaulting Lender is a Limited Fronting Lender) and (ii) each such Several Letter of Credit shall be amended to specify the Non-Defaulting Lenders that are parties to such Several Letter of Credit, after giving effect to such event, and such Non-Defaulting Lenders’ Revolving Credit Exposures plus respective NAIC Tranche Applicable Percentages or Non-NAIC Tranche Applicable Percentages with respect thereto as of the effective date of such amendment (and, notwithstanding anything herein to the contrary, such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that Lender shall have no obligation under each such reallocation shall be given effect only if, at Several Letter of Credit to the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described extent such L/C Obligations 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 respect thereof are so long as such LC Exposure is outstandingallocated);
(iii) if Borrower Cash Collateralizes the L/C Obligations held by the Non-Defaulting Lenders under the applicable Tranche are reallocated with respect to any portion Several Letter of such Defaulting Lender’s LC Exposure Credit 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 (ic)(ii) above, then the Letter of Credit fees payable to the Lenders with respect to such Several Letter of Credit pursuant to Section 2.4.2 2.09(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate Sharesrespective NAIC Tranche Applicable Percentages or Non-NAIC Tranche Applicable Percentages; and
(viv) 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 remains 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 L/C Obligations of the non-Defaulting Lenders and/or Cash Collateral will be provided by Borrower under such Tranche in accordance with Section 2.2.10, and participating interests in respect of any newly made Swingline Loan or any newly issued or increased Several Letter of Credit requested to be issued hereunder shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.2.7 clause (and c)(ii) above (and, notwithstanding anything herein to the contrary, such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as have no obligation under each 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 Several Letter of Credit, unless Borrower shall have Cash Collateralized Credit to the extent 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 L/C Obligations in respect of such Lender hereunderthereof are so allocated). In the event that the Administrative Agent, Borrower, the Swingline Lenders applicable Several L/C Agent and the LC Issuing Banks Company each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then on such date, (A) to the Swingline Exposure and LC Exposure extent the L/C Obligations held by the Non-Defaulting Lenders were theretofore reallocated with respect to any Several Letter of Credit pursuant to clause (c)(ii) or (iv) above, all adjustments shall be made to such Several Letters of Credit consistent with Section 2.20(b)(iv) (including amendments to each such Several Letter of Credit and/or, if applicable, purchases at par by such Lender of the Unreimbursed Amounts then outstanding (if any) of the other Lenders thereunder) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such L/C Obligations under the applicable Tranche in accordance with its respective NAIC Tranche Applicable Percentage or Non-NAIC Tranche Applicable Percentage; (B) if the L/C Obligations held by the Non-Defaulting Lenders under such Tranche were not theretofore reallocated with respect to such Several Letter of Credit pursuant to clause (c)(ii) above, but instead the face amount of any such Several Letter of Credit was increased or a new Several Letter of Credit was issued hereunder in favor of the beneficiary of such Several Letter of Credit in order to provide such beneficiary with an aggregate undrawn face amount of Letters of Credit from the Non-Defaulting Lenders in the amount required by such beneficiary, the amount of such Several Letter of Credit or new Several Letter of Credit shall be readjusted amended to decrease the amount thereof, or the Company shall arrange for such new Letter of Credit to be surrendered by such beneficiary to such Several L/C Agent, in order to reflect the inclusion of such Lender’s respective NAIC Tranche Commitment or Non-NAIC Tranche Commitment; and on such date (C) 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 with respect to each applicable Tranche, whereupon such Lender shall no longer be a Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (American International Group Inc), Credit Agreement (American International 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 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
Sources: Credit Agreement (Athlon Energy Inc.), Credit Agreement (Athlon 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 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 hereunder3.03(a);
2.11.2 (b) the Commitment Commitments 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, modification or waiver or other modification pursuant to Section 7.910.02); provided that, except that as otherwise provided in Section 10.02, (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 maturity of, such Defaulting Lender’s Commitment or reduces the principal amount of, or rate of all the Lenders or each affected Lender that interest on, any Loan made by its terms affects any such Defaulting Lender more adversely than the other affected Lenders Lender, 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:
(i) all or any part of the such Swingline Exposure and LC such Letter of Credit 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 Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that each Commitments and (y) the conditions set forth in Section 5.02 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 Day two (2) Business Days 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 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 (i) above) in accordance with the procedures set forth in Section 2.2.10 2.11(b) for so long as such LC Letter of Credit Exposure is outstanding;
(iii) 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 2.12(c), the Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 3.03(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 Collateralizedcash collateralized;
(iv) if the LC Letter of Credit Exposure of the non-Defaulting Lenders 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 Sections 3.03(a) and 3.03(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesApplicable Percentages; andor
(v) if all or any portion of such Defaulting Lender’s LC Letter of Credit Exposure is neither cash collateralized nor reallocated nor Cash Collateralized pursuant to clause (i) or (ii) abovethis Section 2.12(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 3.03(b) with respect to such Defaulting Lender’s LC Letter of Credit Exposure shall be payable to the relevant LC Issuing Bank until and to the extent that such LC Letter of Credit Exposure is reallocated cash collateralized and/or Cash Collateralizedreallocated; and
2.11.4 (d) if and 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 2.2.102.12(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 2.12(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, 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 Letter of Credit 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 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, and all cash collateral and accrued interest thereon held by the Administrative Agent or the Issuing Bank shall be returned to the Borrower forthwith.
Appears in 2 contracts
Sources: Credit Agreement (Hawaiian Electric Co Inc), Credit Agreement (Hawaiian Electric Co 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 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 not be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend amend, increase or increase decrease 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 issued, increased or increased decreased 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 not be required to fund any Swingline Loan and no LC Issuing Bank shall be required to issue, amend amend, increase or increase decrease 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 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
Sources: 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 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
Sources: 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 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 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 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 Revolving L/C Exposure or LC Swingline Facility Credit Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline such Revolving L/C Exposure and LC Swingline Facility Credit 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’ Commitments; provided that each conditions set forth in Section 4.01 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 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 and/or Swingline Facility 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 2.05(j) for so long as such LC Revolving L/C Exposure and/or Swingline Facility Credit 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), 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 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 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 and to the extent that such LC Exposure Revolving L/C exposure is reallocated 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 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)(ii), and participating interests in any newly made Swingline Loan or any such newly issued or increased Revolving 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 pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or Swingline Facility Lender, (iii) 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, (iv) fourth, if so determined by the Administrative Agent or requested by an Issuing Bank or Swingline Facility Lender, held in such term is defined in clause (d) account as cash collateral for future funding obligations of the definition Defaulting Lender in respect of “any existing or future participating interest in any Revolving Letter of Credit or Swingline Facility Loans, (v) fifth, to the payment of any amounts owing to the Lenders, Swingline Facility Lender or an Issuing Bank as a result of any judgment of a court of competent jurisdiction obtained by any Lender, Swingline Facility Lender or such Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender”’s breach of its obligations under this Agreement, (vi) 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 (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 Person as Loans in respect of which a Defaulting Lender has not funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.01 are satisfied, such payment shall be applied solely to which 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 is, directly that are applied (or indirectly, held) to pay amounts owed by a Subsidiary shall occur following the date hereof and for so long as such event shall continue or (ii) any Swingline Defaulting 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, 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 Swingline Lenders Facility 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 Revolving Facility Credit 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 or such of the Swingline LoansFacility Loans of the Swingline Facility Lender) 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; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; 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
Sources: Revolving Credit Agreement (Frank's International N.V.), Revolving Credit Agreement (Frank's International N.V.)
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
Sources: Credit Agreement (Kinder Morgan, Inc.), Credit Agreement (Kinder Morgan, 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 2.10(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
Sources: 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 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
Sources: 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 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 ▇▇▇▇▇▇▇.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
Sources: Credit and Guarantee Agreement (General Communication Inc), Credit and Guarantee Agreement (Gci 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 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
Sources: Credit Agreement (Transocean Ltd.), Credit Agreement (Transocean 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
Sources: 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) 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 the Commitment (b) The 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 if (c) If any Swingline Exposure L/C Obligations or LC Exposure exists participations in Swing Line Loans exist at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure L/C Obligations or participations in Swing Line Loans 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 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 applicable Borrower shall within one Banking Day three (3) Business Days following notice by the Administrative Agent Agent, (x) first, prepay first repay the Swing Line Loans in an amount equal to such Swingline Exposure Defaulting Lender’s participation therein (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, second Cash Collateralize for the benefit of the LC Issuing Banks L/C Issuer only the applicable Borrower’s 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 the applicable Borrower Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure L/C Obligations pursuant to clause (ii) above, such Borrower 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 or participation in Swing Line Loans 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 or participation in Swing Line Loans is neither reallocated nor reallocated, repaid or 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, Swing Line 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 2.03(h) or in respect of Swing Line Loans with respect to such Defaulting Lender’s LC Exposure L/C Obligations or participation in Swing Line Loans shall be payable to the relevant LC Issuing Bank L/C Issuer or Swing Line Lender until and to the extent that such LC Exposure is reallocated L/C Obligations or participation in Swing Line Loans are repaid, reallocated, and/or Cash Collateralized; and
2.11.4 so (d) So long as (i) such Lender is a Defaulting LenderLender and (ii) a reallocation pursuant to clauses (c)(i) or (c)(ii) above cannot be effectuated, no Swingline Lender the L/C Issuer 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, is satisfied it has received assurances reasonably 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 the applicable Borrower in accordance with Section 2.2.102.16(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 2.16(c)(i) (and such Defaulting Lender shall not participate therein). If .
(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 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 Initial Borrower, the Swingline Lenders L/C 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 Exposure L/C Obligations and LC Exposure participations in Swing Line Loans of the Revolving Credit Lenders shall be readjusted to reflect the inclusion of such LenderL▇▇▇▇▇’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 Revolving Credit 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; provided, further, that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such L▇▇▇▇▇’s having been a Defaulting Lender.
Appears in 2 contracts
Sources: Amendment No. 1 (Global Business Travel Group, Inc.), Credit Agreement (Global Business Travel Group, Inc.)
Defaulting Lenders. (1) Notwithstanding any other provision of this Agreement to the contraryAgreement, if any Lender becomes a Defaulting Lender, then the following provisions of this Section 8.8 shall apply for so long as such until the Agent, the Borrowers, the Issuing Bank and the Swing Line Lender is all agree that the Defaulting Lender has remedied all matters that caused it to be a Defaulting Lender:.
2.11.1 Facility Fees (2) Any Standby Fee shall cease to accrue on the Commitment Defaulting Lender’s unadvanced portion of such any Credit.
(3) The Defaulting Lender pursuant shall not be entitled to Section 2.4.1 (except to the extent allocable to (iexercise any right of consent under Sections 8.6(3) the outstanding principal amount of the Revolving Loans funded by it and (ii8.6(4) and 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 Lenders or the Required Lenders have taken or may take any action hereunder (including provided any consent under those Sections. However, the Defaulting Lender shall be entitled to any amendment, waiver or other modification pursuant to Section 7.9), except that (i) the Commitment(s) exercise its right of consent in respect of any Defaulting Lender may not be increased or extended, or the maturity of matter that expressly requires its consent and 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 matter that requires the consent of all the Lenders or each if it would be affected Lender that by its terms affects any Defaulting Lender more adversely differently than the other affected Lenders shall require Lenders.
(4) If the consent Defaulting Lender is a Revolving Lender, the Borrowers’ right to receive Advances of such the Defaulting Lender;
2.11.3 if any Swingline Exposure ’s unadvanced Commitment under the Revolving Credit shall be suspended and, provided that no Event of Default or LC Exposure exists at Pending Event of Default has occurred and is continuing, the time such Lender becomes a participation of the other Revolving Lenders in Advances under the Revolving Credit shall be re-adjusted without regard to the unadvanced Commitment of the Defaulting Lender then:
(i) all or any part but without increasing the overall Commitments of the Swingline Exposure other Revolving Lenders to the Revolving Credit. If the unadvanced Commitments of the other Revolving Lenders would not be sufficient to cover their obligations and LC Exposure the obligations of such the Defaulting Lender under Section 9.1 then the Borrowers shall be reallocated among repay Advances under the non-Defaulting Lenders in accordance with their respective Proportionate Shares but only Swing Line Tranche and/or provide cash Collateral to the Issuing Bank to secure L/Cs to the extent necessary to cover 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;deficiency.
(ii5) if If the reallocation described in clause (i) above cannotBorrowers provide cash Collateral to the Issuing Bank to secure L/Cs, 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 Borrowers shall not be required to pay any Letter an L/C Fee for the account of Credit fees to such the Defaulting Lender pursuant to Section 2.4.2 with in 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-amount for which it has provided cash Collateral. If the obligation of the Defaulting Lender regarding L/Cs under Section 9.1 is borne by the other Revolving Lenders is reallocated pursuant to clause (i) aboveas a result of Section 8.8(4), then the Letter of Credit fees other Revolving Lenders shall be entitled to receive any L/C Fee that would otherwise have been payable to the Lenders pursuant to Section 2.4.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate Shares; andLender.
(v6) 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, thenThe Agent may, without prejudice to any the other rights or remedies of any LC Issuing Bank or any Lender hereunderthe Lenders, all Facility Fees that otherwise would have been payable make adjustments to such the payments to a Defaulting Lender pursuant under this Agreement as necessary to Section 2.4.1 (solely with respect to compensate the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) other Lenders 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 Agent for 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 failure to make any newly made Swingline Loan payment or fulfill 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 other obligation 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 Sharethis Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Waste Management Inc), Credit Agreement (Waste Management 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 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
Sources: 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 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
Sources: 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 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
Sources: 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
Sources: Credit Agreement (Herbalife Nutrition Ltd.), Credit Agreement (Herbalife Nutrition 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 (a) Unused Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.4.1 2.05(b). Any amount paid by the Borrowers for the account of a Defaulting Lender under this Agreement (except whether on account of principal, interest, fees, indemnity payments or other amounts) will not be paid or distributed to such Defaulting Lender, but will instead be retained by the extent allocable to (i) Administrative Agent in a segregated, non-interest bearing account until the outstanding principal amount occurrence of the Revolving Loans funded by it and (ii) its outstanding Swingline Exposure and/or LC Exposure for Final Collection Date, after which such amount shall be used to pay amounts owing under this Agreement to such Defaulting Lender has provided Cash Collateral or as a court of competent jurisdiction may otherwise direct;
(b) upon the election of the Borrowers and written notice to the relevant Swingline Administrative Agent, the unused portion of the Commitment of such Defaulting Lender or LC Issuing Bank hereunder)may be reduced to zero without any contemporaneous ratable reduction of the Commitments of the other Lenders;
2.11.2 (c) neither the Commitment and Revolving Credit Exposure nor the Loans of such Defaulting Lender shall be included in determining whether all Lenders or the Majority Lenders have taken or may take any action hereunder and the Defaulting Lender shall not be included in determining whether the Required all Lenders have taken or may take have taken any action hereunder (including including, in each case, any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.910.01); provided, except 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 which affects such Defaulting Lender differently than other affected 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 Sharesapplicable; and
(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 the Borrowers may replace 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 hereunder2.22. In the event that the Administrative Agent, Borrowerand, so long as no Event of Default has occurred and is continuing, the Swingline Lenders and the LC Issuing Banks each agrees Borrower Representative, determines that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (x) the Swingline Exposure and LC Exposure of the Lenders Lender Percentages 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 and the Lenders shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Proportionate ShareLender Percentage whereupon such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and (y) the provisions of clauses (a) through (d) above shall, from and after such determination, cease to be of further force or effect with respect to such Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 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
Sources: Loan Agreement (Bluerock Homes Trust, Inc.), Loan Agreement (Bluerock Residential Growth REIT, 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 shall cease to accrue on the Commitment of (a) such Defaulting Lender shall not be entitled to receive any commitment fee pursuant to Section 2.4.1 2.09(a) for any period during which it is a Defaulting Lender (except and the Company shall not be required to the extent allocable pay any such fee that would otherwise have been required 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 have been paid to such Defaulting Lender has provided Cash Collateral to the relevant Swingline Lender or LC Issuing Bank hereunderLender);
2.11.2 (b) the Commitment Commitments and Revolving Credit Exposure Exposures 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 7.99.02), ; except that (i) the Commitment(s) Commitments 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 extended without the consent of such Defaulting Lender and (ii) any amendmentwaiver, waiver amendment 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; and
(c) with respect to any Several Letter of Credit and/or the L/C Obligations of such Defaulting Lender with respect thereto,
(i) such Defaulting Lender shall not be entitled to receive any Letter of Credit fee pursuant to Section 2.09(b) for any period during which it is a Defaulting Lender (and (except as provided in clause (c)(iii) below) the Company shall not be required to pay any such fee that would otherwise have been required to have been paid to such Defaulting Lender);
2.11.3 if (ii) subject to the condition that no Default has occurred and is continuing, with respect to any Swingline Exposure or LC Exposure exists Several Letter of Credit outstanding at the time such Lender becomes a Defaulting Lender then:
(other than any Several Letter of Credit with respect to which another Lender has agreed to act as the Limited Fronting Lender for such Defaulting Lender), with the consent of the beneficiary thereunder to the extent required by the terms thereof or under applicable Law, (i) all or any part portion of the Swingline Exposure and LC Exposure of L/C Obligations held by such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Proportionate Shares L/C Tranche Applicable Percentages but only to the extent that (A) the sum of all nonthe aggregate L/C Tranche Credit Exposure of Non-Defaulting Lenders plus the Outstanding Amount of the L/C Obligations held by such Defaulting Lender shall not exceed the total L/C Tranche Commitments of the Non-Defaulting Lenders (except as provided in Section 2.20(k) for Limited Fronting Lenders) and (B) the aggregate Outstanding Amount of the L/C Obligations held by each Non-Defaulting Lender shall not exceed the L/C Tranche Commitment of such Non-Defaulting Lender (except as provided in Section 2.20(k) if such Non-Defaulting Lender is a Limited Fronting Lender) and (ii) each such Several Letter of Credit shall be amended to specify the Non-Defaulting Lenders that are parties to such Several Letter of Credit, after giving effect to such event, and such Non-Defaulting Lenders’ Revolving Credit Exposures plus respective L/C Tranche Applicable Percentages with respect thereto as of the effective date of such amendment (and, notwithstanding anything herein to the contrary, such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided that Lender shall have no obligation under each such reallocation shall be given effect only if, at Several Letter of Credit to the date the applicable Lender becomes a Defaulting Lender, no Inchoate Default or Event of Default exists;
(ii) if the reallocation described extent such L/C Obligations 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 respect thereof are so long as such LC Exposure is outstandingallocated);
(iii) if Borrower Cash Collateralizes the L/C Obligations held by the Non-Defaulting Lenders are reallocated with respect to any portion Several Letter of such Defaulting Lender’s LC Exposure Credit 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 (ic)(ii) above, then the Letter of Credit fees payable to the Lenders with respect to such Several Letter of Credit pursuant to Section 2.4.2 2.09(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Proportionate SharesL/C Tranche Applicable Percentages; and
(viv) 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 remains 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 L/C Obligations 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 respect of any newly made Swingline Loan or any newly issued or increased Several Letter of Credit requested to be issued hereunder shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.2.7 clause (and c)(ii) above (and, notwithstanding anything herein to the contrary, such Defaulting Lender shall not participate therein). If (i) a bankruptcy event (as have no obligation under each 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 Several Letter of Credit, unless Borrower shall have Cash Collateralized Credit to the extent 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 L/C Obligations in respect of such Lender hereunderthereof are so allocated). In the event that the Administrative Agent, Borrower, the Swingline Lenders applicable Several L/C Agent and the LC Issuing Banks Company each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then on such date, (A) to the Swingline Exposure and LC Exposure extent the L/C Obligations held by the Non-Defaulting Lenders were theretofore reallocated with respect to any Several Letter of Credit pursuant to clause (c)(ii) or (iv) above, all adjustments shall be made to such Several Letters of Credit consistent with Section 2.20(b)(iv) (including amendments to each such Several Letter of Credit and/or, if applicable, purchases at par by such Lender of the Unreimbursed Amounts then outstanding (if any) of the other Lenders thereunder) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such L/C Obligations in accordance with its L/C Tranche Applicable Percentage; (B) if the L/C Obligations held by the Non-Defaulting Lenders were not theretofore reallocated with respect to such Several Letter of Credit pursuant to clause (c)(ii) above, but instead the face amount of any such Several Letter of Credit was increased or a new Several Letter of Credit was issued hereunder in favor of the beneficiary of such Several Letter of Credit in order to provide such beneficiary with an aggregate undrawn face amount of Letters of Credit from the Non-Defaulting Lenders in the amount required by such beneficiary, the amount of such Several Letter of Credit or new Several Letter of Credit shall be readjusted amended to decrease the amount thereof, or the Company shall arrange for such new Letter of Credit to be surrendered by such beneficiary to such Several L/C Agent, in order to reflect the inclusion of such Lender’s Commitment L/C Tranche Commitment; and on such date (C) 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 with respect to each applicable Tranche, whereupon such Lender shall no longer be a Defaulting Lender.
Appears in 2 contracts
Sources: Credit Agreement (American International Group Inc), Credit Agreement (American International Group 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 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
Sources: 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 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
Sources: Revolving Credit Agreement (Barings Capital Investment Corp), Senior Secured Revolving Credit Agreement (Barings BDC, 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 (i) Unused 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 2.10(a);
(ii) its outstanding Swingline Exposure and/or LC Exposure for which such Defaulting Lender has provided Cash Collateral notwithstanding anything to the relevant Swingline Lender or LC Issuing Bank hereunder);
2.11.2 contrary contained in Section 2.03 hereof, the unused portion of the Commitment and Revolving Credit Exposure of such Defaulting Lender may be reduced to zero without any contemporaneous ratable reduction of the Commitments of the other Lenders;
(iii) neither the Commitment nor the portion of the Loans Outstanding (if any) funded by such Defaulting Lender shall not be included in determining whether all Lenders, a majority of the Lenders or the Required Lenders have taken or may take any action hereunder and such Defaulting Lender shall not be included in determining whether all Lenders have taken or may take any action hereunder (including including, in each case, any consent to any amendment, amendment or waiver or other modification pursuant to Section 7.913.01); provided, except 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 Lender, as applicable, 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:
(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;and
(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 Borrower may replace 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 2.17 of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 this Agreement.
(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, 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 Lender to be a Defaulting Lender, then (i) the Swingline Exposure and LC Exposure of the Lenders Lender Percentages 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 ShareLender Percentage and (ii) the provisions of clause (a), above, shall, from and after such determination, cease to be of further force or effect with respect to such Lender.
Appears in 2 contracts
Sources: Loan Agreement (Lendbuzz Inc.), Loan Agreement (Lendbuzz 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
Sources: 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 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 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 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 ▇▇▇▇▇▇’s having been a Defaulting Lender.
Appears in 2 contracts
Sources: 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 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
Sources: Credit Agreement (Inergy L P), Credit Agreement (Inergy Holdings, L.P.)
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
Sources: 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) 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
Sources: Amendment and Restatement 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 under Section 4.3 shall cease to accrue on the Commitment that portion of such Defaulting Lender pursuant to Section 2.4.1 Lender’s Committed Sum that remains unfunded or which has not been included in any LC Exposure;
(except to the extent allocable to (ib) the outstanding principal amount of the Revolving Loans funded by it Committed Sum 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 Usage of such Defaulting Lender shall not be included in determining whether the Required all Lenders or 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 7.914.10), 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 adversely 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 LC Exposure or LC Swing Line Exposure exists at the time such a Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline contingent obligations of Lenders in respect of such LC Exposure and LC Swing Line Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Pro Rata Part but only to the extent (a) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures Commitment Usage plus such Defaulting Lender’s Swingline LC Exposure and LC Swing Line 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 Committed Sums and (b) no Lender, no Inchoate Default or Event of Default exists’s Commitment Usage exceeds its Committed Sum;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower shall shall, within one Banking (1) Business Day following notice by Administrative Agent Agent, (xA) first, prepay such Swingline Exposure the Swing Line Borrowings 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 Pro Rata Part of the 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 a manner reasonably satisfactory to Administrative Agent for so long as such LC Exposure is outstanding;
(iii) if Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) abovethis Section 3.20(c), Borrower shall not be required to pay any Letter of Credit fees to such Defaulting Lender pursuant to Section 2.4.2 4.2 with respect to such cash collateralized portion of the 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 3.20(c), then the Letter of Credit fees payable to the Lenders pursuant to Section 2.4.2 4.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesPro Rata Part of the Facility Committed Sum; 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 3.20(c), then, without prejudice to any rights or remedies of any LC Issuing Bank Administrative Agent or any Lender hereunder, all Facility Fees that otherwise would have been fees payable to such Defaulting Lender Lenders 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 4.2 with respect to such Defaulting Lender’s LC Exposure that is neither cash collateralized nor reallocated shall be payable to the relevant LC Issuing Bank Administrative Agent until and to the extent that such LC Exposure is reallocated fully cash collateralized and/or Cash Collateralized; andreallocated;
2.11.4 (d) so long as such any Lender is a Defaulting Lender, no Swingline Lender Administrative Agent shall not be (i) required to fund any Swingline Loan and no LC Issuing Bank shall be Swing Line Borrowing or (ii) required to issue, amend amend, renew, increase or increase extend any Letter of CreditLC unless it is satisfied, unless such Swingline Lender or LC Issuing Bankin its reasonable discretion, 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 Committed Sums of the non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by Borrower in accordance with Section 2.2.103.20(c), and participating interests in any such newly issued, amended, renewed, increased or extended LC or newly made Swingline Loan or any newly issued or increased Letter of Credit Swing Line Borrowing shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.2.7 3.20(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) shall, in lieu of being distributed to such Defaulting Lender, be retained by Administrative Agent in a segregated account and subject to any applicable requirements of law, be applied (i) a bankruptcy event (as first, to the payment of any amounts owing by such term is defined in clause (d) of the definition of “Defaulting Lender”) with respect Lender 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 cash collateralization of any Swingline participating interest in any LC in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent, (iii) third, if so determined by Administrative Agent and Borrower, held in such account as cash collateral for future funding obligations of any Defaulting Lender under this Agreement, (iv) fourth, pro rata, to the payment of any amounts owing to Borrower or Lenders as a result of any judgment of a court of competent jurisdiction obtained by 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 this Agreement and (v) fifth, to such Defaulting Lender or more other agreements as otherwise directed by a court of competent jurisdiction, provided that if such payment is (x) a prepayment of the principal amount of any Borrowing and (y) made at a time when the conditions set forth in which Section 6.2 are satisfied, such Lender commits to extend credit, no Swingline Lender payment shall be required applied solely to fund prepay the Borrowings of all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Swingline Loan and no LC Issuing Bank shall be required to issue, amend or increase Borrowings of any Letter of Credit, unless Borrower shall have Cash Collateralized such Defaulting 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 Agent and the LC Issuing Banks Borrower each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then on such date the Swingline LC Exposure and LC Swing Line Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Committed Sum and on such date such Lender shall purchase at par such of the Loans Borrowings 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 Borrowings in accordance with its Proportionate SharePro Rata Part. Except as expressly modified by this Section 3.20, the performance by Borrower under any Loan Paper shall not be excused or otherwise modified as a result of this Section 3.20.
Appears in 2 contracts
Sources: Credit Agreement (Monro, Inc.), Credit Agreement (Monro Muffler Brake 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 5.9;
(except b) Such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than the extent allocable to (imatters provided in Section 12.1(a) requiring the outstanding principal amount consent of such affected Lender), and the Revolving Loans funded by it Credit 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 Commitment Percentages in outstanding Revolving Credit Loans of such Defaulting Lender shall not be included in determining whether the Majority 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 7.912.1); provided, that, except that as otherwise provided in Section 12.1, 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 of 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 amount outstanding in respect of Letters of Credit or 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 Revolving Credit Commitment Percentage of such Defaulting Lender in Letters of Credit and Swingline Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Proportionate Shares Revolving Credit Commitment Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures Commitment Percentages in Revolving Credit Loans and in Letters of Credit and Swingline Loans plus such Defaulting Lender’s Revolving Credit Commitment Percentage in Letters of Credit and Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments; provided , (y) the conditions set forth in Section 7.2 are satisfied at such time (and, unless the Company shall have otherwise notified the Administrative Agent at such time, the Company shall be deemed to have represented and warranted that each such conditions are satisfied at such time) and (z) to the extent such reallocation shall be given effect only ifdoes not, at the date the applicable Lender becomes a as to any non-Defaulting Lender, no Inchoate Default or Event cause such non-Defaulting Lender’s Revolving Credit Loans, its Protective Advances, its Swingline Loans and its Revolving Credit Commitment Percentages in Letters of Default existsCredit to exceed its Revolving Credit 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 Collateralize, for the benefit of the LC Issuing Banks only BorrowerLender, the Company’s obligations corresponding to such Defaulting Lender’s LC Exposure Revolving Credit Commitment Percentage in 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 10.1 for so long as such LC Exposure Defaulting Lender’s Revolving Credit Commitment Percentage in Letters of Credit is outstanding;
(iii) if Borrower the Company Cash Collateralizes any portion of such Defaulting Lender’s LC Exposure Revolving L/C Obligations pursuant to clause (ii) 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 5.11 with respect to such Defaulting Lender’s LC Exposure Revolving Credit Commitment Percentage in Letters of Credit during the period such Defaulting Lender’s LC Exposure Revolving Credit Commitment Percentage in Letters of Credit is Cash Collateralized;
(iv) if the LC Exposure Revolving Credit Commitment Percentage in Letters of Credit 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 5.9 and Section 5.11 shall be adjusted in accordance with such non-Defaulting Lenders’ Proportionate SharesRevolving Credit Commitment Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure Revolving Credit Commitment Percentage in Letters of Credit is neither 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 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 Credit Commitment Percentage in Letters of Credit) and Letter of Credit fees payable under Section 2.4.2 5.11 with respect to such Defaulting Lender’s LC Exposure Revolving Credit Commitment Percentage in Letters of Credit shall be payable to the relevant LC Issuing Bank Lender until and to the extent that such LC Exposure Revolving Credit Commitment Percentage in Letters of Credit is reallocated and/or Cash Collateralized; and
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 Revolving Credit Commitment Percentage in then outstanding LC Exposure Letters of Credit 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 2.2.105.24(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 5.24(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 or Bail-In Action 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 Closing Date and for so long as such event shall continue or (ii) any Swingline the 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 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 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 Borrower the Company or such Lender, satisfactory to such Swingline the 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, 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 the L/C Participating Interest of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Revolving Credit Commitments and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than the 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 Commitments.
Appears in 2 contracts
Sources: Credit Agreement (NGL Energy Partners LP), Credit Agreement (NGL Energy 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 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
Sources: 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 Lender, then the following provisions shall apply on the date such Lender becomes a Defaulting Lender and 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 hereunder2.11(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 or Required Revolving Credit 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 or 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 (A) the sum of all non-Defaulting Revolving Credit Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and or LC Exposure does not exceed the total of all non-Defaulting Revolving Credit Lenders’ Commitments; provided that each Revolving Credit Commitments and (B) such reallocation shall be given effect only if, at does not cause the date the applicable aggregate Revolving Credit Exposure of any non-Defaulting Lender becomes a to exceed such non-Defaulting Lender, no Inchoate Default or Event of Default exists’s Revolving Credit Commitment;
(ii) if the reallocation described in clause (iSection 2.18(c)(i) above cannot, or can only partially, be effected, Borrower GEO shall within one Banking Business Day following notice by the Administrative Agent Agent, (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize cash collateralize, on a pro rata basis, for the benefit of the LC Issuing Banks only Borrower’s Lenders, the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) aboveSection 2.18(c)(i)) 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 Borrower Cash Collateralizes ▇▇▇ ▇▇▇▇ collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower GEO 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 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 LC Exposure shall be payable to the relevant LC applicable Issuing Bank Lender until and to the extent that such LC Exposure as applicable, is reallocated and/or Cash Collateralized; andcash collateralized;
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 Lender shall be required to issue, amend or increase 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 Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure Exposure, as applicable, will be 100% covered by the Revolving Credit Commitments of the applicable non-Defaulting Lenders and/or Cash Collateral cash collateral will be provided by Borrower GEO in accordance with Section 2.2.102.18(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among the applicable non-Defaulting Lenders in a manner consistent with Section 2.2.7 2.18(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 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 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 the Swingline Lender or any Issuing Lender hereunder; third, to cash collateralize on a pro rata basis each Issuing Lender’s LC Issuing Bank has a good faith belief that Exposure with respect to such Defaulting Lender; fourth, as GEO may request (so long as no Default exists), to the funding of any Loan in respect of which such Defaulting Lender has defaulted 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 GEO, to be held in fulfilling a deposit account and released pro rata in order to (i) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (ii) cash collateralize the Issuing Lenders’ 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 Swingline Lender or the Issuing Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Swingline Lender or the Issuing Lenders 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; seventh, so long as no Default exists, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender 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 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 (i) such payment is a payment of the principal amount of any Loans 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 Disbursements in respect of which such Defaulting Lender hereunderhas not fully funded its appropriate share, and (ii) 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 LC Exposures and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments without giving effect to Section 2.18(c). 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 2.18(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, BorrowerGEO, the 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 LenderLender (or if such Defaulting Lender has been replaced pursuant to Section 2.17), then (i) the Swingline Exposure and LC Exposure of the Revolving Credit Lenders shall be readjusted to reflect the inclusion of such Lender’s (or replacement ▇▇▇▇▇▇’s) Revolving Credit Commitment and on such date such Lender (or replacement 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 (or replacement Lender) to hold such Loans in accordance with its Proportionate ShareApplicable Percentage and (ii) all cash collateral provided pursuant to Section 2.18(c) with respect to such Defaulting Lender shall be immediately released to the Borrowers.
Appears in 2 contracts
Sources: Credit Agreement (Geo Group Inc), Credit Agreement (Geo Group Inc)