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: (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a); (b) if any Swingline Exposure or Revolving Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender 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 Non-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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 of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwise, the Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 for so long as such Revolving Letter of Credit Exposure is outstanding, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit Exposure pursuant to the requirements of this Section 2.16(b), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Revolving Letter of Credit Exposure is Cash Collateralized, (iv) if the Revolving Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(b), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Revolving Letter of Credit Exposure shall be payable to the applicable Revolving Letter of Credit Issuer until such Revolving Letter of Credit Exposure is Cash Collateralized and/or reallocated; (c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer; (d) the Swingline Lender will not be required to fund any Swingline Loans unless the Swingline Lender is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance with the requirements of Section 2.16(b) above; and (e) If the Borrower, the Administrative Agent and the Revolving Letter of Credit Issuers agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any 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 Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Energy Future Competitive Holdings CO), Amendment No. 2 (Energy Future Intermediate Holding CO 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:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a3.3(a);
(b) the Commitments and Total 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 or waiver pursuant to Section 10.2); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically and LC Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that Applicable Percentages to the extent (A) each Nonimmediately after giving effect thereto, the sum of all non-Defaulting Lender’s Lenders’ Revolving Letter of Credit Exposure plus its Swingline Exposure may would not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Revolving Commitments and (B) neither the conditions set forth in Section 5.2 are satisfied at such reallocation nor any payment by time (for the avoidance of doubt, no Lender’s Revolving Commitment shall be changed as a Non-Defaulting Lender pursuant thereto will constitute a waiver or release result of any claim the Borrower, the Administrative Agent, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, reallocation);
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenderseffected, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwise, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) firstAgent, prepay such Swingline Exposure (the Borrower shall, after giving effect to any partial reallocation pursuant to clause (i) above, (A) first, prepay such Swingline Exposure and (yB) second, Cash Collateralize cash collateralize such Defaulting Lender’s Revolving Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 2.9(i) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if to the extent the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b2.12(c), the Borrower shall not be required to pay any fees to for the account of such Defaulting Lender pursuant to Section 4.1(c3.3(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonsuch non-Defaulting Lenders Lender is reallocated pursuant to the requirements of this Section 2.16(b2.12(c), then the fees payable to the Lenders pursuant to Section 4.1(c3.3(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or Applicable Percentages; and
(v) if the Administrative Agent shall promptly notify the Lenders of any Defaulting Lender’s Revolving Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of reallocation described in this Section 2.16(b2.12(c), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Revolving Letter of Credit Exposure shall be payable to the applicable Revolving Letter of Credit Issuer until such Revolving Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(d) so long as any Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend, extend or increase any Letter of Credit, unless the Swingline Lender it is reasonably satisfied that any the related exposure that would result from the exposure to such Defaulting Lender is eliminated or fully will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or a combination thereof and/or cash collateral will be provided by the Borrower in accordance with the requirements 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 2.16(b2.12(c)(i) above(and Defaulting Lenders shall not participate therein); and
(e) If 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 2.11(c) but excluding Section 3.9) shall, in lieu of being distributed to such Defaulting Lender, be retained by the BorrowerAdministrative 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 (i) first, to the payment of any amounts then owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts then owing by such Defaulting Lender to the Issuing Bank or Swingline Lender hereunder, (iii) third, to the extent requested by the Issuing Bank or Swingline Lender, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any existing or future participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, (v) fifth, if so determined by the Administrative Agent and the Revolving Letter Borrower, held in such account as cash collateral for future funding obligations of Credit Issuers agree the Defaulting Lender in writing respect of any Loans under this Agreement, (vi) 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 breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in their discretion that a Lender that is respect of LC Disbursements in respect of which a Defaulting Lender should no longer be deemed to be has funded its participation obligations and (y) made at a Defaulting Lender, time when the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any conditions set forth thereinin Section 5.2 are satisfied, such Lender will cease payment shall be applied solely to be a Defaulting Lender prepay the Loans of, and will be a Nonreimbursement obligations owed to, all non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned Lenders pro rata prior to being applied to the Borrower and any Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 prepayment of any claim of Loans, or reimbursement obligations owed to, any party hereunder arising from such Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit and Guarantee Agreement (Gci Inc), Credit and Guarantee Agreement (General Communication Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02); provided, that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Applicable Percentages but only to the extent that the sum of all or any portion of the non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.22(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (TimkenSteel Corp), Credit Agreement (Newport 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification pursuant to Section 9.02(b) requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two three (3) Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the Borrowers’ 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(cSections 2.12(a) and 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with Section 2.24(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Lender Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling any of its funding obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Company or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Company, the Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (MATERION Corp), Credit Agreement (MATERION Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lenderbecomes, then and during the following provisions shall apply for so long as such Lender is period it remains, a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) if any Swingline Exposure or Revolving Letter of Credit L/C Exposure exists at the time a such Revolving Lender becomes a Defaulting LenderLender then so long as such Swingline Exposure or Revolving L/C Exposure exists, then (i) all or any part of such the Swingline Exposure and Revolving Letter of Credit L/C Exposure of such Defaulting Lender and shall automatically, for so long as such Swingline Exposure of such Defaulting Lender willand Revolving L/C Exposure is outstanding, 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 Pro Rata Percentages but only to the extent the sum of all non-Defaulting Revolving Credit Commitment PercentageLenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and Revolving L/C Exposure does not exceed the total of all non-Defaulting Revolving Lenders’ Revolving Commitments; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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 Nonnon-Defaulting Revolving Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Revolving Letter of Credit IssuersIssuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to no longer be a Non-Defaulting Lender, ;
(iib) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (a) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall shall, within two one Business Days Day following notice by the Administrative Agent Agent, (xi) first, prepay such Swingline Loans and (ii) second, cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s Revolving L/C Exposure (after giving effect to any partial reallocation pursuant to clause (ia) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.23(j) for so long as such Revolving Letter of Credit L/C Exposure is outstanding, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit Exposure pursuant to the requirements of this Section 2.16(b), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Revolving Letter of Credit Exposure is Cash Collateralized, (iv) if the Revolving Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(b), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Revolving Letter of Credit Exposure shall be payable to the applicable Revolving Letter of Credit Issuer until such Revolving Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(c) no Revolving Letter in furtherance of Credit Issuer will the foregoing, each of the Issuing Bank and the Swingline Lender is hereby authorized by the Borrower (which authorization is irrevocable and coupled with an interest) to give, in its discretion, through the Administrative Agent, a Borrowing Request pursuant to Section 2.03 in such amounts and in such times as may be required to issue any new Revolving (i) reimburse an outstanding L/C Disbursement, (ii) repay an outstanding Swingline Loan and/or (iii) cash collateralize the obligations of the Borrower in respect of outstanding Letters of Credit or Swingline Loans in an amount at least equal to the aggregate amount of the obligations (contingent or otherwise) of such Defaulting Lender in respect of such Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit IssuerSwingline Loan;
(d) so long as such Lender is a Defaulting Lender or if any Issuing Bank or the Swingline Lender will has a good faith and reasonable belief that any Lender has defaulted in fulfilling its obligations generally under other agreements in which it commits to extend credit, then (i) the Swingline Lender shall not be required to fund any Swingline Loans Loan and no Issuing Bank shall be required to issue, amend, renew, increase or extend any Letter of Credit, unless the Swingline Lender it is reasonably satisfied that any the related exposure that would result from the exposure to such Defaulting Lender is eliminated or fully will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or a combination thereof and/or cash collateral will be provided by the Borrower in accordance with the requirements of Section 2.16(bclauses (a) and (b) above, 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 clause (a) (and such Defaulting Lender shall not participate therein) and (ii) the Swingline Lender may, upon prior written notice to the Borrower and the Administrative Agent, resign as Swingline Lender, effective at 5:00 p.m., New York City time, on a date specified in such notice (which date may not be less than 30 days after the date of such notice); provided that such resignation by the Swingline Lender will have no effect on its rights in respect of any outstanding Swingline Loans or on the obligations of the Borrower or any Lender under this Agreement with respect to any such outstanding Swingline Loan; and
(e) If any amount paid by the Borrower or otherwise received by the Administrative Agent for the account of a Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts) will not be paid or distributed to such Defaulting Lender, but will instead be retained by the Administrative Agent in a segregated account until (subject to the last paragraph of this Section 2.26) the termination of the Commitments and payment in full of all obligations of the Borrower hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by Applicable Law, to the making of payments from time to time in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreement; second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank or the Swingline Lender (pro rata as to the respective amounts owing to each of them) under this Agreement; third, to the payment of post-default interest and then current interest due and payable to the Lenders hereunder other than Defaulting Lenders, ratably among them in accordance with the amounts of such interest then due and payable to them; fourth, to the payment of fees then due and payable to the non-Defaulting Lenders hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them; fifth, to pay principal and unreimbursed L/C Disbursements then due and payable to the non-Defaulting Lenders hereunder ratably in accordance with the amounts thereof then due and payable to them; sixth, to the ratable payment of other amounts then due and payable to the non-Defaulting Lenders; and, seventh, after the termination of the Commitments and payment in full of all obligations of the Borrower hereunder, to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct. In the event that the Administrative Agent, the Borrower, the Administrative Agent Issuing Banks and the Revolving Letter of Credit Issuers agree Swingline Lender each agrees in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Administrative Agent will shall so notify the parties hereto, whereupon, whereupon as of the effective date specified in such notice and subject to any conditions set forth thereintherein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.26(e)), such Lender will, to the extent applicable, purchase at par such portion of outstanding Loans of the other Lenders and/or make such other adjustments as the Administrative Agent may determine to be necessary to cause the Revolving Exposure, Revolving L/C Exposure and Swingline Exposure of the Revolving Lenders to be held in accordance with their Pro Rata Percentage in accordance with their respective Commitments, whereupon such Lender will cease to be a Defaulting Lender and will be a Nonnon-Defaulting Lender (and any applicable Cash Collateral shall such Revolving Exposure, Revolving L/C Exposure and Swingline Exposure of each Revolving Lender will automatically be promptly returned adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower and any Revolving Letter of Credit Exposure of while such Lender reallocated pursuant to the requirements of Section 2.16(b) shall be reallocated back to such was a Defaulting Lender; provided thatand provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Nonnon-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s Lender having been a Defaulting Lender. 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 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.
Appears in 2 contracts
Samples: Credit Agreement (NRG Energy, Inc.), Credit Agreement (NRG 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:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Revolving Commitment and Revolving Extensions of Credit 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 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Commitment Percentage; provided that (A) each Non-plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Lenders’ Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.05(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.21(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 2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 hold such Loans in accordance with its Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderPercentage.
Appears in 2 contracts
Samples: Credit Agreement (United Surgical Partners International Inc), Credit Agreement (Shoreline Real Estate Partnership, LLP)
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:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.8(a);
(b) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders, the Required Revolving Lenders or the Majority Facility Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit L/C Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and L/C Exposure of such Defaulting Lender and (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically term) shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Commitment Percentage; provided that (A) each Non-plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and L/C Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Lenders’ Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower applicable Borrowers shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Lender only the Borrowers’ obligations corresponding to such Defaulting Lender’s L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 8 for so long as such Revolving Letter of Credit L/C Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes applicable Borrowers cash collateralize any portion of such Defaulting Lender’s Revolving Letter of Credit L/C Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower applicable Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c3.3(a) with respect to such Defaulting Lender’s Letter of Credit L/C Exposure during the period such Defaulting Lender’s Revolving Letter of Credit L/C Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit L/C Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c3.3(a) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit L/C Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees payable under Section 4.1(c3.3(a) with respect to such Defaulting Lender’s Revolving Letter of Credit L/C Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Lender until and to the extent that such Revolving Letter of Credit L/C Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will Lenders shall not be required to fund any Swingline Loans Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding L/C Exposure will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or a combination thereof and/or cash collateral will be provided by the applicable Borrowers in accordance with the requirements Section 2.23(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 2.16(b2.23(c)(i) above; and(and such Defaulting Lender shall not participate therein).
(ei) If a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lenders or the Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lenders shall not be required to fund any Swingline Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lenders or the Issuing Lender, as the case may be, shall have entered into arrangements with the applicable Borrowers or such Lender, satisfactory to the Swingline Lenders or the Issuing Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Parent Borrower, the Administrative Agent Swingline Lenders and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Lender each agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and L/C 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 hold such Loans in accordance with its Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderPercentage.
Appears in 2 contracts
Samples: Credit Agreement (Ultra Clean Holdings, Inc.), Credit Agreement (Ultra Clean 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a3.03(a);
(b) the Commitments and 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 pursuant to Section 10.02); provided that (i) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) any amendment or modification that increases, or extends the maturity of, such Defaulting Lender’s Commitment or reduces the principal amount of, or rate of interest on, any Revolving Loan made by such Defaulting Lender, shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or Revolving Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Commitments and (By) neither the conditions set forth in Section 5.02 are satisfied at 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two (2) Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize cash collateralize such Defaulting Lender’s Revolving 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 3.8 2.11(b) for so long as such Revolving Letter of Credit Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit Exposure pursuant to the requirements of this Section 2.16(b2.12(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c3.03(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Revolving Letter of Credit Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b2.12(c), then the fees payable to the Lenders pursuant to Section 4.1(cSections 3.03(a) and 3.03(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or Applicable Percentages; or
(v) if any Defaulting Lender’s Revolving Letter of Credit Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b2.12(c), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 4.1(c3.03(b) with respect to such Defaulting Lender’s Revolving Letter of Credit Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until such Revolving Letter of Credit Exposure is Cash Collateralized cash collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;; and
(d) if and so long as any Lender is a Defaulting Lender, the Swingline Lender will Issuing Bank shall not be required to fund issue, amend or increase any Swingline Loans Letter of Credit, unless the Swingline Lender it is reasonably satisfied that any the related exposure that would result from the exposure to such Defaulting Lender is eliminated or fully will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or a combination thereof and/or cash collateral will be provided by the Borrower in accordance with the requirements of Section 2.16(b) above; and
(e) If the Borrower2.12(c), the Administrative Agent and the Revolving participating interests in any such newly issued or increased Letter of Credit Issuers agree shall be allocated among non-Defaulting Lenders in writing in their discretion a manner consistent with Section 2.12(c)(i) (and Defaulting Lenders shall not participate therein). In the event that a Lender the Administrative Agent, the Borrower and the Issuing Bank each agrees that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) Lenders shall be reallocated back readjusted to such Lender; provided that, except to reflect 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 inclusion of any claim of any party hereunder arising from such Lender’s having been a Defaulting LenderCommitments and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its Applicable 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
Samples: Credit Agreement (Hawaiian Electric Industries Inc), Credit Agreement (Hawaiian Electric 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:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 9.02), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically and LC Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Revolving Commitments and (By) neither the conditions set forth in Section 4.02 are satisfied at 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time; and
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in paragraph (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Borrowers shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize cash collateralize such Defaulting Lender’s Revolving Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause paragraph (i) above), ) in accordance with the procedures set forth in Section 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Borrowers cash collateralize any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b2.20(c), the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b2.20(c), then the fees payable to the Lenders pursuant to Section 4.1(cSections 2.12(a) and (b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or Applicable Percentages; or
(v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b2.20(c), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until such Revolving Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(d) the Swingline Lender will Issuing Bank shall not be required to fund issue, amend or increase any Swingline Loans Letter of Credit, unless the Swingline Lender it is reasonably satisfied that any the related exposure that would result from the exposure to such Defaulting Lender is eliminated or fully will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or a combination thereof and/or cash collateral will be provided by the Borrowers in accordance with the requirements Section 2.20(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.16(b) above2.20(c)(i)(and Defaulting Lenders shall not participate therein); and
(e) If in the Borrowerevent and on the date that each of the Administrative Agent, the Administrative Agent Borrowers, the Issuing Bank and the Revolving Letter of Credit Issuers agree in writing in their discretion Swingline Lender agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC 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 Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Kaiser Aluminum Corp), Credit Agreement (Kaiser Aluminum 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant Issuing Banks only the Company’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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer relevant Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with Section 2.22(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by relevant Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Company or such Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Company, the Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Banks each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Watsco Inc), Credit Agreement (Watsco 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:
(a) fees shall cease to accrue on the unfunded portion of the unused Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit Uncommitted Swingline Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure of such Defaulting Lender and such Uncommitted Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Commitments but only to the extent that (x) the sum of all or any portion of the non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Uncommitted Swingline Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Sections 4.01 and 4.02 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and Uncommitted Swingline Exposure; and
(after giving effect d) so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and Swingline Exposure related to any partial reallocation pursuant to clause newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) above) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 for so long as such Revolving Letter of Credit Exposure is outstanding, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit Exposure pursuant to the requirements of this Section 2.16(b), the Borrower event shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Revolving Letter of Credit Exposure is Cash Collateralized, (iv) if the Revolving Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, continue or (v) if any Defaulting Lender’s Revolving Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(b), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Revolving Letter of Credit Exposure shall be payable to the applicable Revolving Letter of Credit Issuer until such Revolving Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(dii) the Swingline Lender will has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loans Loan unless the Swingline Lender is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lenders and the Revolving Letter of Credit Issuers Uncommitted Swingline Lenders, if any, each agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and the Uncommitted Swingline Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans and Uncommitted Swingline Loans) as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Td Ameritrade Holding Corp), Credit Agreement (Td Ameritrade Holding Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 4.1(a)3.04;
(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 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Commitment Proportions but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the total of all non-Defaulting Lenders’ 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Lender only the Company’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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c3.04(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c3.04(a) and Section 3.04(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Proportions; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c3.04(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Lender until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(cd) no Revolving Letter of Credit Issuer will so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to issue fund any new Revolving Swingline Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the applicable Revolving Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Company in accordance with the requirements Section 2.07(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Section 2.16(b) above or otherwise Credit shall be allocated among non-Defaulting Lenders in a manner reasonably satisfactory consistent with Section 2.07(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the applicable Revolving Letter of Credit Issuer;
date hereof and for so long as such event shall continue or (dii) the Swingline Lender will or the Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loans Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Lender, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Company or such Lender, satisfactory to the Swingline Lender or the Issuing Lender, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Company, the Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Lender each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Commitment Proportion.
Appears in 2 contracts
Samples: Credit Agreement (Medical Action Industries Inc), Credit Agreement (Medical Action Industries 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, to the extent permitted by applicable law:
(a) fees shall cease to accrue and be payable on the unfunded portion of the Commitment Revolving Commitments of such Defaulting Lender pursuant to Section 4.1(a)3.5;
(b) the Revolving Commitments and Term Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders, Majority Facility Lenders, all Lenders, or all Lenders under any Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 11.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each Lender or each Lender affected (or adversely affected) thereby;
(c) if any Swingline Exposure Loans or Revolving Letter of Credit Exposure exists L/C Obligations exist at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such the Defaulting Lender’s Revolving Letter Percentage of Credit Exposure the Swingline Loans then outstanding and L/C Obligations of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the NonRevolving Lenders that are non-Defaulting Lenders pro rata in accordance with their respective Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Commitment Percentage; provided that (A) each Non-plus such Defaulting Lender’s Revolving Letter Percentage of Credit Exposure plus its the Swingline Exposure may Loans then outstanding and L/C Obligations does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Lenders’ Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two three Business Days following the Borrower’s receipt of notice by from the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the Swingline Exposure Loans then outstanding and (y) second, cash collateralize for the benefit of the Issuing Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 9 for so long as such Revolving Letter of Credit Exposure is L/C Obligations are outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit Exposure L/C Obligations pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) 3.9 with respect to such Defaulting Lender’s Letter of Credit Exposure L/C Obligations during the period such Defaulting Lender’s Revolving Letter of Credit Exposure is Cash Collateralized, L/C Obligations are cash collateralized;
(iv) if the Revolving Letter of Credit Exposure L/C Obligations of the NonRevolving Lenders that are non-Defaulting Lenders is are reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Revolving Lenders pursuant to Section 4.1(c) 3.5 and Section 3.9 shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, L/C Obligations are neither reallocated nor cash collateralized pursuant to clause (i) or (vii) if any Defaulting Lender’s Revolving Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(b)above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees payable pursuant to Section 3.5 that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such L/C Obligations) and fees payable under Section 4.1(c) 3.9 with respect to such Defaulting Lender’s Revolving Letter of Credit Exposure L/C Obligations shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Lender until such Revolving Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory and to the applicable Revolving Letter of Credit Issuer;extent that such L/C Obligations are reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C Obligations 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 4.16(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 4.16(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Lender, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, reasonably satisfactory to the Swingline Lender or the Issuing Lender, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; andsuch Lender hereunder.
(e) If In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree Issuing Lender each agrees in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Lenders’ Revolving Percentages of the Swingline Loans then outstanding and the L/C Obligations 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 Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 hold such Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Amendment and Restatement Agreement (Metropcs Communications Inc), Amendment and Restatement Agreement (Metropcs Communications 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that Applicable Percentages but only to the extent (A) each Nonthe sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit LC Exposure plus its Swingline Exposure may does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Commitments 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, no Default has occurred and is continuing;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Swingline 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will Issuing Bank shall not be required to fund issue, amend or increase any Swingline Loans Letter of Credit, unless the Swingline Lender it is reasonably 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 2.21(c), and participating interests in any exposure that would result from the exposure to newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.21(c)(i) (and such Defaulting Lender is eliminated shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or fully covered by (ii) the Revolving Credit Commitments Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Non-Defaulting Lenders or a combination thereof in accordance Issuing Bank shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Borrower and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then 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 of the Loans of the other Lenders as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Amtrust Financial Services, Inc.), Credit Agreement (Amtrust Financial 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.6;
(b) if any Swingline Exposure or Revolving Letter of the Commitments and Outstanding Credit Exposure exists 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 or waiver pursuant to Section 8.2), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if the Pro Rata Share of the outstanding Swing Line Loans (such Lender’s “Swing Line Exposure”) or the Pro Rata Share of the outstanding LC Obligations (such Lender’s “LC Exposure”) is greater than zero at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Swing Line Exposure of such Defaulting Lender and such Swingline LC Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ Outstanding Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swing Line Exposure plus its Swingline and LC Exposure may does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Commitments and (By) neither the conditions set forth in Section 4.2 are satisfied at 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time; and
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Swing Line Exposure and (y) second, cash collateralize 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 Revolving 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 3.8 8.1 for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)8.1, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.19(d) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b2.17(c), then the fees payable to the Lenders pursuant to Section 4.1(c2.6 and Section 2.19(d) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or Pro Rata Shares; or
(v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b2.17(c), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit LC Issuer or any Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.19(d) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit LC Issuer until such Revolving Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;
(cd) no Revolving Letter of Credit Issuer will be required to issue so long as any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by a Defaulting Lender, the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(d) the Swingline Swing Line Lender will shall not be required to fund any Swingline Loans Swing Line Loan and the LC Issuer shall not be required to issue, amend or increase any Facility LC, unless the Swingline Lender it is reasonably satisfied that any the related exposure that would result from the exposure to such Defaulting Lender is eliminated or fully will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or a combination thereof and/or cash collateral will be provided by the Borrower in accordance with the requirements of Section 2.16(b8.1, and participating interests in any such newly issued or increased Facility LC or newly made Swing Line Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.17(c)(i) above(and Defaulting Lenders shall not participate therein); and
(e) If any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.17 but excluding Section 3.7) 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) 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 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 Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Borrower 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 (vi) sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of LC Disbursements which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.2 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Agent, the Borrower, the Administrative Agent LC Issuer and the Revolving Letter of Credit Issuers agree in writing in their discretion Swing Line Lender each agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Administrative Agent will so notify the parties hereto, whereupon, as Swing Line Exposure and LC Exposure of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral Lenders shall be promptly returned readjusted to reflect the Borrower and any Revolving Letter inclusion of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderCommitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swing Line Loans) as the Administrative shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Pro Rata Share.
Appears in 2 contracts
Samples: Credit Agreement (Kelly Services Inc), Credit Agreement (Kelly 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.12;
(b) the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority in Interest of any Class or 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 any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically and LC Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Commitments and (By) neither the conditions set forth in Section 4.02 are satisfied at 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two five Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize 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 Revolving 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 3.8 2.05(i) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b2.22(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b2.22(c), then the fees payable to the Lenders pursuant to Section 4.1(cSections 2.12(a) and (b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or Applicable Percentages; and
(v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b2.22(c), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any Lender hereunder, all fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer until such Revolving Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof Issuing Banks ratably in accordance with the requirements portion of Section 2.16(b) above or otherwise in a manner reasonably satisfactory such LC Exposure attributable to the applicable Revolving Letter of Credit Issuer;each Issuing Bank until such LC Exposure is cash collateralized and/or reallocated; and
(d) the so long as any Lender is a Defaulting Lender, no Swingline Lender will not shall be required to fund any Swingline Loans Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender it is reasonably satisfied that any the related exposure that would result from the exposure to such Defaulting Lender is eliminated or fully will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or a combination thereof and/or cash collateral will be provided by the Borrower in accordance with Section 2.22(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 2.22(c)(i) (and Defaulting Lenders shall not participate therein). In the requirements of Section 2.16(b) above; and
(e) If event that the Administrative Agent, the Borrower, the Administrative Agent each Issuing Bank and the Revolving Letter of Credit Issuers agree in writing in their discretion each Swingline Lender each agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Administrative Agent will so notify the parties hereto, whereupon, as Swingline Exposure and LC Exposure of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral Lenders shall be promptly returned readjusted to reflect the Borrower and any Revolving Letter inclusion of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderCommitment 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 shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Skype S.a r.l.), Credit Agreement (Skype S.a r.l.)
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:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.8(a);
(b) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders, the Required Revolving Lenders or the Majority Facility Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit L/C Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and L/C Exposure of such Defaulting Lender and (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically term) shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Commitment Percentage; provided that (A) each Non-plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and L/C Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Lenders’ Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower applicable Borrowers shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Lender only the Borrowers’ obligations corresponding to such Defaulting Lender’s L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 8 for so long as such Revolving Letter of Credit L/C Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes applicable Borrowers cash collateralize any portion of such Defaulting Lender’s Revolving Letter of Credit L/C Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower applicable Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c3.3(a) with respect to such Defaulting Lender’s Letter of Credit L/C Exposure during the period such Defaulting Lender’s Revolving Letter of Credit L/C Exposure is Cash Collateralized, (iv) if the Revolving Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(b), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Revolving Letter of Credit Exposure shall be payable to the applicable Revolving Letter of Credit Issuer until such Revolving Letter of Credit Exposure is Cash Collateralized and/or reallocatedcash collateralized;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(d) the Swingline Lender will not be required to fund any Swingline Loans unless the Swingline Lender is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance with the requirements of Section 2.16(b) above; and
(e) If the Borrower, the Administrative Agent and the Revolving Letter of Credit Issuers agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any 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 Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Ultra Clean Holdings, Inc.), Credit Agreement (Ultra Clean 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 Lenderapply:
(ai) fees Facility Fees shall cease to accrue on the unfunded unused portion of the such Defaulting Lender’s Commitment.
(ii) The Commitment and Outstanding Credit Exposure 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 or waiver pursuant to Section 4.1(a8.2);; provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender shall require the consent of such Defaulting Lender (in such case, to the extent such Defaulting Lender is an affected Lender).
(biii) if any Swingline Exposure Unless a Default or Revolving Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lenderan Unmatured Default shall have occurred and be continuing, then (i) all or any part of such Revolving Letter Defaulting Lender’s Swingline Exposure and LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their Pro Rata Shares of the Aggregate Commitment, but only to the extent the sum of all non-Defaulting Lenders’ Outstanding Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments.
(iv) If the LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender willis reallocated pursuant to subparagraph (iii) above, subject then the LC Participation Fees payable to the limitation in the first proviso below, automatically Lenders pursuant to Section 2.8.2 shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata adjusted in accordance with their respective Revolving Credit Commitment Percentage; provided that such reallocation.
(Av) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may not If the reallocation described 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, clause (ii) to the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenderseffected, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwise, the each Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such the portion of the Swingline Exposure attributable to Swingline Loans made to such Borrower and (y) second, cash collateralize for the benefit of the Issuing Banks such Borrower’s obligations corresponding to the portion of such Defaulting Lender’s LC Exposure that is attributable to Letters of Credit issued for the account of such Borrower (in each case, as determined after giving effect to any partial reallocation pursuant to clause (iiii) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.6(i) for so long as such Revolving Letter of Credit LC Exposure is outstanding, .
(iiivi) if the If a Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (v) above, the such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) 2.8.2 with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized.
(ivvii) if The Agent shall adjust the Revolving Letter allocation of Credit Exposure payments hereunder to ensure that a Defaulting Lender does not receive payment in respect of any Loan or LC Disbursement that it did not fund or to reflect any of the Non-Defaulting Lenders is reallocated pursuant actions or adjustments referred to the requirements of in this Section 2.16(b), then the fees payable to the Lenders pursuant to Section 4.1(c2.24. If (i) shall be adjusted in accordance with such Non-Defaulting Lenders’ 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) a Bankruptcy Event with respect to the parent company of any Lender shall occur following the date hereof and for so long as such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, event shall continue or (v) if any Defaulting Lender’s Revolving Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(b), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Revolving Letter of Credit Exposure shall be payable to the applicable Revolving Letter of Credit Issuer until such Revolving Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(dii) the Swingline Lender will or any Issuing Bank shall have a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loans Loan and such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or such Issuing Bank, as the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements applicable Borrower or such Lender reasonably satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to mitigate the risk to it in respect of Section 2.16(b) above; and
(e) If such Lender failing to satisfy its participating interest therein. In the event that the Agent, each Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers each Issuing Bank agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Administrative Agent will so notify the parties hereto, whereupon, as Swingline Exposure and LC Exposure of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral Lenders shall be promptly returned readjusted to reflect the Borrower and any Revolving Letter inclusion of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been Commitment and on such date such Lender shall purchase at par such of the Loans (other than Competitive Loans and Swingline Loans) and participations in LC Disbursements of the other Lenders as the Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Pro Rata Share. Except as expressly provided in this Section 2.24 in connection with the obligations of the Swingline Lender or the Issuing Banks, the obligation of each Lender, Issuing Bank and Swingline Lender to fund the full amount of its Commitment and to make Loans, Advances and other extensions of credit hereunder shall not be released or diminished in any respect by any other Lender becoming a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Ameren Energy Generating Co), Credit Agreement (Ameren Energy Generating Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Commitment and Revolving 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 or waiver pursuant to Section 9.02); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically and LC Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Commitments and (By) neither the conditions set forth in Section 4.02 are satisfied at 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time; and
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b2.20(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b2.20(c), then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or Applicable Percentages; or
(v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b2.20(c), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until such Revolving Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;; and
(cd) no Revolving Letter of Credit Issuer will so long as any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue issue, amend or increase any new Revolving Letter of Credit, unless it is satisfied that the related 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 2.20(c), and participating interests in any such newly issued or increased Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Nonnewly made Swingline Loan shall be allocated among non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
consistent with Section 2.20(c)(i) (d) the Swingline Lender will not be required to fund any Swingline Loans unless the Swingline Lender is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-and Defaulting Lenders or a combination thereof in accordance with shall not participate therein). In the requirements of Section 2.16(b) above; and
(e) If event that the Administrative Agent, the Borrower, the Administrative Agent Issuing Bank and the Revolving Letter of Credit Issuers agree in writing in their discretion Swingline Lender each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Ethan Allen Interiors Inc), Credit Agreement (Lifetime 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Commitment and Revolving 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 9.02); provided, that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Applicable Percentages but only to the extent that the sum of all or any portion of the non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer relevant Issuing Banks until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.21(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or such Issuing Bank, as the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion each Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Dean Foods Co), Credit Agreement (Dean Foods 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 Lenderapply:
(ai) fees Facility Fees shall cease to accrue on the unfunded unused portion of the such Defaulting Lender’s Commitment.
(ii) The Commitment and Outstanding Credit Exposure 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 or waiver pursuant to Section 4.1(a8.2);; provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender shall require the consent of such Defaulting Lender (in such case, to the extent such Defaulting Lender is an affected Lender).
(biii) if any Swingline Exposure Unless a Default or Revolving Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lenderan Unmatured Default shall have occurred and be continuing, then (i) all or any part of such Revolving Letter Defaulting Lender’s Swingline Exposure and LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their Pro Rata Shares of the Aggregate Commitment, but only to the extent the sum of all non-Defaulting Lenders’ Outstanding Credit Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments.
(iv) If the LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender willis reallocated pursuant to subparagraph (iii) above, subject then the LC Participation Fees payable to the limitation in the first proviso below, automatically Lenders pursuant to Section 2.8.2 shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata adjusted in accordance with their respective Revolving Credit Commitment Percentage; provided that such reallocation.
(Av) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may not If the reallocation described 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, clause (ii) to the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure above cannot, or can only partially, be so reallocated to Non-Defaulting Lenderseffected, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwise, the each Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such the portion of the Swingline Exposure attributable to Swingline Loans made to such Borrower and (y) second, cash collateralize for the benefit of the Issuing Banks such Borrower’s obligations corresponding to the portion of such Defaulting Lender’s LC Exposure that is attributable to Letters of Credit issued for the account of such Borrower (in each case, as determined after giving effect to any partial reallocation pursuant to clause (iiii) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.6(i) for so long as such Revolving Letter of Credit LC Exposure is outstanding, .
(iiivi) if the If a Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (v) above, the such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) 2.8.2 with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized.
(ivvii) if The Agent shall adjust the Revolving Letter allocation of Credit Exposure payments hereunder to ensure that a Defaulting Lender does not receive payment in respect of any Loan or LC Disbursement that it did not fund or to reflect any of the Non-Defaulting Lenders is reallocated pursuant actions or adjustments referred to the requirements of in this Section 2.16(b), then the fees payable to the Lenders pursuant to Section 4.1(c2.23. If (i) shall be adjusted in accordance with such Non-Defaulting Lenders’ 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) a Bankruptcy Event with respect to the parent company of any Lender shall occur following the date hereof and for so long as such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, event shall continue or (v) if any Defaulting Lender’s Revolving Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(b), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Revolving Letter of Credit Exposure shall be payable to the applicable Revolving Letter of Credit Issuer until such Revolving Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(dii) the Swingline Lender will or any Issuing Bank shall have a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loans Loan and such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or such Issuing Bank, as the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements applicable Borrower or such Lender reasonably satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to mitigate the risk to it in respect of Section 2.16(b) above; and
(e) If such Lender failing to satisfy its participating interest therein. In the event that the Agent, each Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers each Issuing Bank agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Administrative Agent will so notify the parties hereto, whereupon, as Swingline Exposure and LC Exposure of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral Lenders shall be promptly returned readjusted to reflect the Borrower and any Revolving Letter inclusion of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been Commitment and on such date such Lender shall purchase at par such of the Loans (other than Competitive Loans and Swingline Loans) and participations in LC Disbursements of the other Lenders as the Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Pro Rata Share. Except as expressly provided in this Section 2.23 in connection with the obligations of the Swingline Lender or the Issuing Banks, the obligation of each Lender, Issuing Bank and Swingline Lender to fund the full amount of its Commitment and to make Loans, Advances and other extensions of credit hereunder shall not be released or diminished in any respect by any other Lender becoming a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders, Required Revolving Lenders or Required Financial Covenant Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Revolving Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Revolving Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that Exposure (Aafter giving effect to such reallocation) each Nondoes not exceed the total of all non-Defaulting Lender’s Lenders’ Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) firstAgent, prepay Cash Collateralize for the benefit of the Issuing Lenders only the Borrower’s obligations corresponding to such Swingline 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 Revolving 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 3.8 2.04(k) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b)(i) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, ;
(iv) if the Revolving Letter of Credit LC Exposure of such Defaulting Lender is reallocated to the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Revolving Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b)(i) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Applicable Percentages and the Borrower shall not be required to pay any fees after giving effect to the Defaulting Lender pursuant to Section 4.1(c) with respect to reallocation of such Defaulting Lender’s Revolving Letter LC Exposure pursuant to clause (i) above; and
(v) if all or any portion of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither reallocated nor Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Lender or any other Revolving Lender hereunder, all fees payable under Section 4.1(c2.12(b)(i) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Lenders until and to the extent that such Revolving Letter of Credit LC Exposure is reallocated and/or Cash Collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;Collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the Swingline 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 2.20(c), and participating interests in any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender will shall not participate therein);
(i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Revolving Lender shall occur following the First Amendment Effective Date and for so long as such event shall continue or (ii) any Issuing 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, such Issuing Lender shall not be required to fund issue, amend or increase any Swingline Loans Letter of Credit, unless such Issuing Lender shall have entered into arrangements with the Swingline Lender is reasonably satisfied that any exposure that would result from the exposure Borrower or such Revolving Lender, satisfactory to such Defaulting Issuing Lender is eliminated or fully covered by to defease any risk to it in respect of such Lender hereunder. In the Revolving Credit Commitments of event that the Non-Defaulting Lenders or a combination thereof in accordance with the requirements of Section 2.16(b) above; and
(e) If the BorrowerAdministrative Agent, the Administrative Agent Borrower and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Lenders each agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then the 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 as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in order for such notice and 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 Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 hold such Lender’s having been a Defaulting LenderRevolving Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Griffon 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 8.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, consent, waiver or other modification requiring the consent of “such Lender” or each Lender directly affected thereby pursuant to clauses (i), (ii) or (iii) in the first proviso in Section 8.02(b).
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenderseffected, whether by reason of the first proviso in Section 2.16(b)(iwithin three (3) above or otherwise, the Borrower shall within two Business Days following notice by the Administrative Agent (x) first, the applicable Borrower shall prepay such Swingline Exposure and (y) second, the Company shall cash collateralize for the benefit of the Issuing Bank only the Company’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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, outstanding ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized; 262657
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.24(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 2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrowers or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Company, the Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Masco Corp /De/)
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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Commitment and Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Required Revolving Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent the sum of all non- Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Lenders’ Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two three (3) Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of each Issuing Bank only, the Borrowers’ 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer relevant Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to such Issuing Bank until and to the applicable Revolving Letter of Credit Issuer until extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the relevant Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with Section 2.24(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non- Defaulting Lenders in a manner consistent with Section 2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the Original Effective Date and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its funding obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by relevant Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Company or such Lender, reasonably satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Company, the Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion each Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Coach 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:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 4.1(a2.11(a);
(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 10.02); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the total of all non-Defaulting Lenders’ 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of each applicable Issuing Lender only the Borrowers’ 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 Revolving 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 3.8 2.05(k) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.11(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Credit Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Lender until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(cd) no Revolving Letter of Credit Issuer will so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to issue fund any new Revolving Swingline Loan and no Issuing Lender shall be required to issue, amend or increase any Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the applicable Revolving Letter of Credit Issuer it is reasonably satisfied that any exposure that would result from the exposure to such related Swingline Exposure or LC Exposure and the Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Company in accordance with the requirements Section 2.20(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Section 2.16(b) above or otherwise Credit shall be allocated among non-Defaulting Lenders in a manner reasonably satisfactory to consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). In the applicable Revolving Letter of Credit Issuer;
(d) event that the Administrative Agent, the Company, the Swingline Lender will not be required to fund any Swingline Loans unless the Swingline and each Issuing Lender is reasonably satisfied each agrees 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 a combination thereof in accordance with the requirements of Section 2.16(b) above; and
(e) If the Borrower, the Administrative Agent and the Revolving Letter of Credit Issuers agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed 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 such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Cambrex 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:
(a) Commitment fees shall will cease to accrue on the unfunded portion of the Commitment of such the Defaulting Lender pursuant to Section 4.1(a3.05(a) and such Defaulting Lender shall not be entitled to receive any commitment fee pursuant to Section 3.05(a);
(b) if If any Swingline Exposure Loans are outstanding or Revolving Letter of Credit any LC Exposure exists at the time a Lender becomes is a Defaulting LenderLender then solely for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, then refinance or fund participations in Swingline Loans and Letters of Credit pursuant to Section 2.08 and Section 2.10:
(i) all or any part of such Revolving Letter of Credit the Swingline Participation Amount and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that Exposures does not exceed the total of all non-Defaulting Lenders’ Commitments, (Ay) each Nonnon-Defaulting Lender’s total Revolving Letter of Credit Exposure plus its Swingline 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 (Bz) neither the conditions set forth in Section 6.02 are satisfied at 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two three Business Days following notice by the Global Administrative Agent given no later than 12:00 noon, Chicago time (x) first, prepay the Swingline Participation Amount of the Defaulting Lender to the Swingline Lender and (y) second, cash collateralize such Swingline 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 Revolving 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 3.8 2.08(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b2.11(b), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, (iv) cash collateralized; if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)2.11, then the fees payable to the Lenders pursuant to Section 4.1(c3.05(a) and Section 3.05(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Applicable Percentages and with the balance of such fee, if any, being retained by the Borrower shall not be required to pay any fees for its own account or, to the Defaulting Lender pursuant extent any LC Exposure shall then be outstanding, being payable to Section 4.1(c) with respect each applicable Issuing Bank for its own account to the extent such Defaulting Lender’s Revolving Letter fee relates to the amount of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or LC Exposure; or
(viv) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b)2.11, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit fees payable under Section 4.1(c3.05(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the each applicable Revolving Letter of Credit Issuer Issuing Bank until such Revolving Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;.
(c) no Revolving Letter Notwithstanding any provision of Credit Issuer will be required this Agreement to issue the contrary, so long as any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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-a Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(d) Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit unless the Swingline Lender it is reasonably satisfied that the related 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 2.08(j), and participating interests in any exposure that would result from the exposure 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 2.11(b)(i) (and Defaulting Lenders shall not participate therein).
(d) Any amount payable to such Defaulting Lender is eliminated hereunder (whether on account of principal, interest, fees or fully covered otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 4.01(c) or Section 10.02(c), but excluding Section 5.04(b)) will, in lieu of being distributed to such Defaulting Lender, be retained by the Revolving Credit Commitments Global 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 Global Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Global 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 Lender hereunder, (iii) third, to cash collateralize such Defaulting Lender’s LC Exposure in accordance with Section 2.08(j), (iv) fourth, as the Borrower may request (so long as no Default exists), to the funding of any Loan or Swingline Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Global Administrative Agent, (v) fifth, if so determined by the Global Administrative Agent and the Borrower, held in an interest bearing account and released pro rata in order to (A) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (B) cash collateralize such Defaulting Lender’s future LC Exposure in accordance with Section 2.08(j), (vi) sixth, to the payment of any amounts then owing to the Lenders, any Issuing Bank or the Swingline Lender as a result of any final and non-appealable 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 breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts then owing to the Borrower as a result of any final and non-appealable judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the Nonprincipal amount of any Loans or reimbursement obligations in respect of LC Disbursement or Swingline Participation Amount that a Defaulting Lender has not fully funded its participation obligations and (y) in the case of such Loans which were made at a time when the conditions set forth in Section 6.02 were satisfied or waived, such payment will 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 a combination thereof in accordance with reimbursement obligations owed to, any Defaulting Lender. Any payments, prepayments or other amounts paid or payable to any Defaulting Lender that are applied (or held) to pay amounts owed by such Defaulting Lender or to post cash collateral pursuant to Section 2.11 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents to the requirements of Section 2.16(b) above; andforegoing.
(e) If any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Global Administrative Agent, require such Lender to be replaced in accordance with Section 5.04(b).
(f) In the event that the Global Administrative Agent, the Borrower, the Administrative Agent Issuing Banks and the Revolving Letter of Credit Issuers agree in writing in their discretion Swingline Lender each agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Participation Amounts and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Global Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage; provided, that no adjustments will so notify the parties hereto, whereupon, as be made retroactively with respect to fees accrued or payments made by or on behalf of the effective date specified in such notice and subject to any conditions set forth therein, Borrower while such Lender will cease to be was a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) shall be reallocated back to such Lender; provided thatand 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 that the Borrower, the Global Administrative Agent, the Issuing Banks, the Swingline Lender, or any party hereunder arising from other Lender may have against such Lender’s having been Defaulting Lender or cause such Defaulting Lender to be a non-Defaulting LenderLender except as expressly set forth above.
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Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 amendment, waiver or other modification pursuant to Section 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Lenders’ Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant Issuing Banks only the Revolving Borrowers’ 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Revolving Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Revolving Lenders pursuant to Sections 2.12(a) and Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Applicable Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer relevant Issuing Banks until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) the so long as such Lender is a Defaulting Lender, no Swingline Lender will not shall be required to fund any Swingline Loans Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or a combination thereof and/or cash collateral will be provided by the Company in accordance with the requirements of Section 2.16(b) above; and
(e) If the Borrower2.24(c), the Administrative Agent and the Revolving participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit Issuers agree shall be allocated among non-Defaulting Lenders in writing in their discretion that a manner consistent with Section 2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the Restatement Effective Date and for so long as such event shall continue or (ii) any Swingline Lender or any Issuing Bank has a good faith belief that is 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 Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Company or such Lender, satisfactory to such Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Company, each Swingline Lender and each Issuing Bank each agrees that a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 hold such Loans in accordance with its Applicable Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderPercentage.
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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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.21(a);
(b) if any Swingline Exposure or the Commitment and Revolving Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Revolving Letter 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 8.01); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or L/C Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) so long as no Event of Default has occurred and such is continuing, all or any part of the Swingline Exposure and L/C Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Pro Rata Share but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and L/C Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the applicable Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 6.02 for so long as such Revolving Letter of Credit L/C Exposure is outstanding, ;
(iii) if the any Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit L/C Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.16(g)(i) with respect to such Defaulting Lender’s Letter of Credit L/C Exposure during the period such Defaulting Lender’s Revolving Letter of Credit L/C Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit L/C Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.16(g)(i) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Pro Rata Share; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit L/C Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such L/C Exposure) and letter of credit fees payable under Section 4.1(c2.16(g)(i) with respect to such Defaulting Lender’s Revolving Letter of Credit L/C Exposure shall be payable to the applicable Revolving Letter of Credit Issuer relevant Issuing Bank until and to the extent that such Revolving Letter of Credit L/C Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Advance and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C 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 2.22(c), and participating interests in any such newly made Swingline Advance or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein).
(i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Advance and such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or such Issuing Bank, as the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements applicable Borrower or such Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Agent, the Administrative Agent Borrowers, the Swingline Lender and the Revolving Letter of Credit Issuers Issuing Banks each agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Administrative Agent will so notify the parties hereto, whereupon, as Swingline Exposure and L/C Exposure of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral Lenders shall be promptly returned readjusted to reflect the Borrower and any Revolving Letter inclusion of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderCommitment and on such date such Lender shall purchase at par such of the Advances of the other Lenders (other than Swingline Advances) as the Agent shall determine may be necessary in order for such Lender to hold such Advances in accordance with its Pro Rata Share.”
(g) The Commitment Schedule to the Credit Agreement is hereby replaced in its entirety with the Commitment Schedule attached hereto as Annex A.
Appears in 1 contract
Samples: Credit Agreement (Scholastic 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:
(a) fees Facility Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.11(a);
(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 or waiver pursuant to Section 8.7); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender; provided further that the Commitment of a Defaulting Lender may not be increased and the Availability Period as it applies to a Defaulting Lender may not be extended, in each case without the consent of such Defaulting Lender.
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically and LC Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Commitments and (By) neither the conditions set forth in paragraphs (a) and (b) of Section 4.2 are satisfied at 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time; and
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Borrowers shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize 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 Revolving 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 3.8 Article VI for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Borrowers cash collateralize any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b2.20(c), the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.11(c) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b2.20(c), then the fees payable to the Lenders pursuant to Section 4.1(c2.11(a) and Section 2.11(c) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or Applicable Percentages; or
(v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b2.20(c), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Lender or any Lender hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.11(c) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until such Revolving Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;
(cd) no Revolving Letter of Credit Issuer will be required to issue so long as any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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-a Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(d) Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender it is reasonably satisfied that any the related exposure that would result from the exposure to such Defaulting Lender is eliminated or fully will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or a combination thereof and/or cash collateral will be provided by the Borrower in accordance with the requirements Section 2.20(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 2.16(b2.20(c)(i) above(and Defaulting Lenders shall not participate therein); and
(e) If the Borrowerany amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise, including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.17(c) but excluding Section 2.18) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Lender or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or Swingline Lender, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any existing or future participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, 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 reasonably determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Lender or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Lender or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by any Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction. In the event that the Administrative Agent, the Company, the Issuing Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Swingline Lender each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Mead Johnson Nutrition 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:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Loan Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.5.1;
(b) the Revolving Loan Commitment and Outstanding 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 8.2); provided, that, except as otherwise provided in Section 8.2, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure outstanding Swing Line Loans or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swing Line Exposure or LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Pro Rata Shares but only to the extent the sum of all non-Defaulting Lenders’ Outstanding Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures prior to such reallocation plus such Defaulting Lender’s Revolving Letter of Credit Swing Line Exposure plus its Swingline and LC Exposure may does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Lenders’ Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Loan Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Swing Line Exposure and (y) second, cash collateralize for the benefit of the LC Issuer 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.20.11 for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) 2.20.4 with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c) 2.5.1 and Section 2.20.4 shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Pro Rata Shares; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit LC Issuer or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c) 2.20.4 with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit LC Issuer until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will Swing Line Lenders shall not be required to fund any Swingline Loans Swing Line Loan and the LC Issuer shall not be required to issue, amend or increase any Facility LC, unless the Swingline Lender it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Loan Commitments of the Nonnon-Defaulting Lenders or a combination thereof and/or cash collateral will be provided by the Borrower in accordance with Section 2.22(c), and participating interests in any newly made Swing Line Loan or any newly issued or increased Facility LC shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the requirements date hereof and for so long as such event shall continue or (ii) the Swing Line Lenders or the LC 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, the Swing Line Lenders shall not be required to fund any Swing Line Loan and the LC Issuer shall not be required to issue, amend or increase any Facility LC, unless the Swing Line Lenders or the LC Issuer, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swing Line Lenders or the LC Issuer, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swing Line Lenders and the Revolving Letter of Credit Issuers agree in writing in their discretion LC Issuer each agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swing Line Exposure and LC Exposure 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 Swing Line Loans) as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Pro Rata Share.
Appears in 1 contract
Samples: Credit Agreement (Chemed 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02); provided, that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent the sum of all non‑Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of each Issuing Bank with outstanding Letters of Credit only the Borrowers’ 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Banks or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with Section 2.24(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or such Issuing Bank, as the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Company or such Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Company, the Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Banks each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(aA) fees payable pursuant to Section 2.14(C)(i) shall cease to accrue on the unfunded portion of the Revolving Loan Commitment of such Defaulting Lender;
(B) the Revolving Loan 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 supplemental agreement effecting an amendment or waiver pursuant to Section 4.1(a9.3); provided that this clause (B) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly adversely affected thereby;
(bC) if any Swingline Swing Line Exposure or Revolving Letter of Credit L/C Exposure exists is outstanding at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Swing Line Exposure of such Defaulting Lender and such Swingline L/C Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Obligations plus such Defaulting Lender’s Revolving Letter of Credit Swing Line Exposure plus its Swingline and L/C Exposure may does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Revolving Loan Commitments and (By) neither the conditions set forth in Section 5.2 are satisfied at 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Swing Line Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank such Defaulting Lender’s L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 3.11 for so long as such Revolving Letter of Credit L/C Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit L/C Exposure pursuant to the requirements of this Section 2.16(b2.24(C), the Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c3.8(A) with respect to such Defaulting Lender’s Letter of Credit L/C Exposure during the period such Defaulting Lender’s Revolving Letter of Credit L/C Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit L/C Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b2.24(C), then the fees payable to the Lenders pursuant to Section 4.1(c2.14(C)(i) and Section 3.8(A) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or relative Pro Rata Shares; and
(v) if any Defaulting Lender’s Revolving Letter of Credit L/C Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b2.24(C), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such L/C Exposure) and letter of credit fees payable under Section 4.1(c3.8(A) with respect to such Defaulting Lender’s Revolving Letter of Credit L/C Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until such Revolving Letter of Credit L/C Exposure is Cash Collateralized cash collateralized and/or reallocated;; and
(cD) no Revolving Letter of Credit Issuer will be required to issue so long as any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by a Defaulting Lender, the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(d) the Swingline Lender will Swing Line Bank shall not be required to fund any Swingline Loans Swing Line Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender it is reasonably satisfied that any the related exposure that would result from the exposure to such Defaulting Lender is eliminated or fully will be 100% covered by the Revolving Credit Loan Commitments of the Nonnon-Defaulting Lenders or a combination thereof and/or cash collateral will be provided by the Company in accordance with the requirements of Section 2.16(b) above; and
(e) If the Borrower2.24(C), the Administrative Agent and the Revolving participating interests in any such newly issued or increased Letter of Credit Issuers agree or newly made Swing Line Loan shall be allocated among non-Defaulting Lenders in writing a manner consistent with Section 2.24(C)(i) (and Defaulting Lenders shall not participate therein). If (i) a Bankruptcy Event or a Bail-In Action with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swing Line Bank or the Issuing Bank has a good faith belief that any Lender has defaulted in their discretion fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swing Line Bank shall not be required to fund any Swing Line Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swing Line Bank or the Issuing Bank, as the case may be, shall have entered into arrangements with the Company or such Lender, satisfactory to the Swing Line Bank or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that a Lender the Administrative Agent, the Company, the Issuing Bank and the Swing Line Bank each agrees that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swing Line Loans and L/C Exposure 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 Loans of the other Lenders (other than Swing Line Loans) as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and 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 Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 order for each Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from hold such Lender’s having been a Defaulting LenderLoans in accordance with its Pro Rata Share.
Appears in 1 contract
Samples: Credit Agreement (Steelcase 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02); provided, that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Parent shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Banks only the Borrowers’ 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Parent cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to such Issuing Bank until and to the applicable Revolving Letter of Credit Issuer until extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Parent in accordance with Section 2.22(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or an Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or such Issuing Bank, as the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Parent or such Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Parent, the Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Banks each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (PTC 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:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Commitments, LC Exposure 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 or waiver pursuant to Section 9.02); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically and LC Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided Applicable Revolver Percentages but only if and to the extent that (A) each Nonthe 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, (B) no Default has occurred and is continuing at the time of such proposed reallocation and (C) such reallocation does not cause the Revolving Credit Exposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitment;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Revolver Percentages; or
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until such Revolving Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(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 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Revolver Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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, waiver or other modification pursuant to Section 9.02); provided, that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Commitments and (By) neither the conditions set forth in Section 4.02 are satisfied at 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(cSections 2.12(a) and 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer relevant Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender it is reasonably 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 2.22(c), and participating interests in any exposure that would result from the exposure to 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 2.22(c)(i) (and such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance with the requirements of shall not participate therein). Subject to Section 2.16(b) above; and
(e) If the Borrower, the Administrative Agent and the Revolving Letter of Credit Issuers agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any 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 Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) shall be reallocated back to such Lender; provided that, except to the extent otherwise expressly agreed by the affected parties9.18, no change reallocation hereunder from Defaulting Lender to Non-Defaulting Lender will 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.
(i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Issuing Banks and the 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 having been a Defaulting LenderCommitment 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 Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Tredegar 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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, waiver or other modification pursuant to Section 9.02); provided that that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Revolving Commitments and (By) neither the conditions set forth in Section 4.02 are satisfied at 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the Borrowers’ 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (ii) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; or
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent such Revolving Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with Section 2.25(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 2.25(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Company, the Issuing Bank and the Revolving Letter of Credit Issuers agree in writing in their discretion Swingline Lender each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for such Lender will cease to be a Defaulting Lender hold such Loans in accordance with its Applicable Percentage and will be a Non-Defaulting Lender and (y) any applicable Cash Collateral cash collateral provided under this Section 2.25 shall be promptly released and returned to the Borrower and any Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderCompany.
Appears in 1 contract
Samples: Credit Agreement (Fuller H B Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) fees the facility fee shall cease to accrue on the unfunded portion unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Revolving Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata ratably in accordance with their respective Revolving Credit Commitment Percentage; provided Commitments but only to the extent that (Ai) each the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Commitments and (ii) such reallocation does not result in the Revolving Exposure of any Non-Defaulting Lender exceeding such Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitment;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two one Business Days Day following notice by the Administrative Agent (xA) first, prepay such Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize the portion of such Defaulting Lender’s Revolving Letter Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of Credit the Issuing Bank 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 3.8 2.05(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company shall cash collateralize any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Company shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Revolving Letter of Credit Exposure is Cash Collateralized, (iv) if the Revolving Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(b), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Revolving Letter of Credit Exposure shall be payable to the applicable Revolving Letter of Credit Issuer until such Revolving Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(d) the Swingline Lender will not be required to fund any Swingline Loans unless the Swingline Lender is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance with the requirements of Section 2.16(b) above; and
(e) If the Borrower, the Administrative Agent and the Revolving Letter of Credit Issuers agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any 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 Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting Lender.Section
Appears in 1 contract
Samples: Credit Agreement (Waters Corp /De/)
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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Commitments, LC Exposure 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 or waiver pursuant to Section 9.02); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically and LC Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided Applicable Percentages but only if and to the extent that (A) each Nonthe sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect Lenders’ Commitments, (B) no Default has occurred and is continuing at the time of such proposed reallocation and (BC) neither such reallocation nor does not cause the Revolving Credit Exposure of any payment by a Nonnon-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against to exceed such Defaulting Lender or cause such Defaulting Lender to be a Nonnon-Defaulting Lender, ’s Commitment;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; or
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until such Revolving Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(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 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Applicable Percentages but only to the extent that (x) the sum of all or any portion of the non-Defaulting Lenders' Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit 's Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders' Commitments and (y) 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 so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit 's LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b)(i) with respect to such Defaulting Lender’s Letter of Credit 's LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit 's LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b)(i) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or ' Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s Revolving Letter of Credit 's LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b)(i) with respect to such Defaulting Lender’s Revolving Letter of Credit 's LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender's then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, reasonably satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Tesco 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:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.8(a);
(b) the Revolving Commitment and Revolving Extensions of Credit 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 10.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit L/C Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and L/C Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Commitment Percentage; provided that (A) each Non-plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and L/C Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Lenders’ Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 8 for so long as such Revolving Letter of Credit L/C Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit L/C Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c3.3(a) with respect to such Defaulting Lender’s Letter of Credit L/C Exposure during the period such Defaulting Lender’s Revolving Letter of Credit L/C Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit L/C Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.8(a) and Section 3.3(a) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit L/C Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees payable under Section 4.1(c3.3(a) with respect to such Defaulting Lender’s Revolving Letter of Credit L/C Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Lender until and to the extent that such Revolving Letter of Credit L/C Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C 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 2.23(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 2.23(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Lender, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Lender, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Lender each agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and L/C 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 hold such Loans in accordance with its Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderPercentage.
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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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.10(a);
(b) the Commitment and Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each NonCommitments but only to the extent the sum of all non-Defaulting Lenders’ Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay any Swingline Exposure to the extent such Swingline Exposure cannot be reallocated and (y) second, cash collateralize for the benefit of the Issuing Bank only the Borrowers’ 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 Revolving 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 3.8 2.04(i) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.10(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(cSections 2.10(a) and (c) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay respective Commitments; or
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.10(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuercash collateralized;
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender it is reasonably 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 Company in accordance with Section 2.18(c), and participating interests in any exposure that would result from the exposure to 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 2.18(c)(i) (and such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance with the requirements of Section 2.16(b) above; andshall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the Borrowerdate hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Administrative Agent Swingline Lender shall not be required to fund any Swingline Loan and the Revolving Issuing Bank shall not be required to issue, amend or increase any Letter of Credit Issuers agree Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Company or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in writing in their discretion respect of such Lender hereunder.
(f) In the event that a the Administrative Agent, the Company, the Swingline Lender and the Issuing Bank each agrees that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Commitment.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
: (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
; (b) the Commitment and 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 or waiver pursuant to Section 9.02), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender, unless the effect of same is to eliminate the Defaulting Lender’s Commitment (which shall require only the consent of the Lenders that are not Defaulting Lenders); (c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then: (i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically and LC Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Commitments and (By) neither the conditions set forth in Section 4.02 are satisfied at 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time; (ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ; (iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b2.21(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Revolving Letter of Credit Exposure is Cash Collateralized, (iv) if the Revolving Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(b), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Revolving Letter of Credit Exposure shall be payable to the applicable Revolving Letter of Credit Issuer until such Revolving Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(d) the Swingline Lender will not be required to fund any Swingline Loans unless the Swingline Lender is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance with the requirements of Section 2.16(b) above; and
(e) If the Borrower, the Administrative Agent and the Revolving Letter of Credit Issuers agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any 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 Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting Lender.such
Appears in 1 contract
Samples: Revolving 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that Applicable Percentages but only to the extent (A) 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 and (B) each Nonnon-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may does 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Nonnon-Defaulting Lender, ’s Commitment;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenderseffected, whether by reason of the first proviso in Section 2.16(b)(iwithin one (1) above or otherwise, the Borrower shall within two Business Days Day following notice by the Administrative Agent (x) first, the Company shall prepay such Swingline Exposure and (y) second, the Company or the applicable Borrower shall cash collateralize, for the benefit of the relevant Issuing Banks only, the Borrowers’ 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company or the relevant Borrowers cash collateralize any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer relevant Issuing Banks until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company or the relevant Borrowers in accordance with Section 2.24(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or such Issuing Bank, as the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrowers or such Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Company, the Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion each Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby that by its terms affects any Defaulting Lender more adversely than other directly affected Lenders;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonthe non-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer relevant Issuing Banks until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender it is reasonably 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 2.22(c), and participating interests in any exposure that would result from the exposure to such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender is eliminated or fully covered by shall not participate therein). In the Revolving Credit Commitments of event that the Non-Defaulting Lenders or a combination thereof in accordance with the requirements of Section 2.16(b) above; and
(e) If Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion each Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
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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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment (whether used or unused) of such Defaulting Lender pursuant to Section 4.1(a2.11(a);
(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 or waiver pursuant to Section 9.02), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically and LC Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages2 but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Commitments and (By) neither the conditions set forth in Section 4.02 are satisfied at 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time; and
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the applicable Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize 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 Revolving 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 3.8 2.05(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the applicable Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b2.20(c), the applicable Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b2.20(c), then the fees payable to the Lenders pursuant to Section 4.1(c2.11(a) and Section 2.11(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or Applicable Percentages; or
(v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b2.20(c), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until such Revolving Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;
(cd) no Revolving Letter of Credit Issuer will be required to issue so long as any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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-a Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(d) Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender it is reasonably satisfied that any the related exposure that would result from the exposure to such Defaulting Lender is eliminated or fully will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or a combination thereof and/or cash collateral will be provided by the applicable Borrower in accordance with the requirements Section 2.20(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 2.16(b2.20(c)(i) above(and Defaulting Lenders shall not participate therein); and
(e) If any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.17 but excluding Section 2.18(b) on account of the Obligations of any Borrower shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent on account of the Obligations of such Borrower hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank or Swingline Lender on account of the Obligations of such Borrower hereunder, (iii) third, to the funding of any Loan or the funding or cash collateralization of any participating interest in any Swingline Loan or Letter of Credit in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, in each case on account of the Obligations of such Borrower, as determined by the Administrative Agent, (iv) fourth, if so determined by the Administrative Agent and the Revolving Letter applicable Borrower, held in such account as cash collateral for future funding obligations of Credit Issuers agree the Defaulting Lender with respect to such Borrower under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to such Borrower or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by such Borrower 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 writing in their discretion that a Lender that is respect of LC Disbursements which a Defaulting Lender should no longer has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such payment shall be deemed applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders with respect to the Obligations of such Borrower pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender. In the event that the Administrative Agent, the U.S. Borrower, the Issuing Bank and the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Administrative Agent will so notify the parties hereto, whereupon, as Swingline Exposure and LC Exposure of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral Lenders shall be promptly returned readjusted to reflect the Borrower and any Revolving Letter inclusion of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderCommitment 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 shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a12(a);
(b) the Commitments, LC Exposure 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 or waiver pursuant to Section 9.02), provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically and LC Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Applicable Percentages but only to the extent that (x) the sum of all or any portion of the non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) 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 so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; or
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until such Revolving Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(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 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 10.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that Exposure (Aafter giving effect to such reallocation) each Nondoes not exceed the total of all non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) firstcash collateralize, prepay Cash Collateralize for the benefit of the Issuing Lenders only the Borrower’s obligations corresponding to such Swingline 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 Revolving 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 3.8 2.04(k) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash cash collateralizesCash Collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b)(i) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash cash collateralizedCash Collateralized, ;
(iv) if the Revolving Letter of Credit LC Exposure of such Defaulting Lender is reallocated to the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b)(i) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Applicable Percentages and the Borrower shall not be required to pay any fees after giving effect to the Defaulting Lender pursuant to Section 4.1(c) with respect to reallocation of such Defaulting Lender’s Revolving Letter LC Exposure pursuant to clause (i) above; and
(v) if all or any portion of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash reallocated nor cash collateralizedCash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Lender or any other Lender hereunder, all fees payable under Section 4.1(c2.12(b)(i) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Lenders until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralizedCash Collateralized; and
(d) so long as such Lender is a Defaulting Lender, no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the Swingline 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 2.20(c), and participating interests in any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender will shall not participate therein);
(i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Lender shall occur following the date hereofThird Restatement Effective Date and for so long as such event shall continue or (ii) any Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Lender shall not be required to fund issue, amend or increase any Swingline Loans Letter of Credit, unless such Issuing Lender shall have entered into arrangements with the Swingline Lender is reasonably satisfied that any exposure that would result from the exposure Borrower or such Lender, satisfactory to such Defaulting Issuing Lender is eliminated or fully covered by to defease any risk to it in respect of such Lender hereunder. In the Revolving Credit Commitments of event that the Non-Defaulting Lenders or a combination thereof in accordance with the requirements of Section 2.16(b) above; and
(e) If the BorrowerAdministrative Agent, the Administrative Agent Borrower and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Lenders each agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then 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 of the Loans of the other Lenders as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Griffon 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.15;
(b) the Commitment, Revolving Credit Exposure and/or Term Loans 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 9.02); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such specific Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically term) shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata that are Revolving Lenders in accordance with their respective Applicable Percentages (calculated disregarding the Revolving Credit Loan Commitment Percentage; provided of each Defaulting Lender) but only (x) to the extent that (A) each such reallocation does not, as to any Non-Defaulting Lender, cause such Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus to exceed its Swingline Exposure may not in any event exceed the Revolving Credit Loan Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (By) neither if the conditions set forth in Section 4.02 are satisfied at 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, Cash Collateralize for the benefit of the Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.07(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.07(e) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, ;
(iv) if the Revolving Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.15(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Applicable Percentages (calculated disregarding the Revolving Credit Loan Commitment Percentages and the Borrower shall not be required to pay of each Defaulting Lender); and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither reallocated nor Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all Revolving Facility Fees payable under Section 2.15(a) that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.15(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is reallocated and/or Cash Collateralized and/or reallocated;Collateralized; and
(cd) so long as such Lender is a Defaulting Lender, no Revolving Letter of Credit Issuer will Swingline Lenders shall be required to issue fund any new Revolving Swingline Loan and no Issuing Bank shall not be required to issue, amend or increase any Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the applicable Revolving Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be one hundred percent (100%) covered by the Revolving Credit Loan Commitments of the Non-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Borrower in accordance with the requirements Section 2.23(d), and Swingline Exposure related to any newly made Swingline Loan or LC Exposure related to any newly issued or increased Letter of Section 2.16(b) above or otherwise Credit shall be allocated among Non-Defaulting Lenders that are Revolving Lenders in a manner reasonably satisfactory consistent with Section 2.23(d)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent shall occur following the applicable Revolving Letter of Credit Issuer;
date hereof and for so long as such event shall continue or (dii) the any Swingline Lender will not or any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, no Swingline Lender shall be required to fund any Swingline Loans Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance the Issuing Banks, as the case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lenders or the Issuing Banks, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent each Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion each Issuing Bank agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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, waiver or other modification pursuant to Section 9.02); provided, that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Applicable Percentages but only to the extent that the sum of all or any portion of the non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant Issuing Banks only the Borrowers’ 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer relevant Issuing Banks until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with Section 2.25(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 2.25(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or such Issuing Bank, as the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Company or such Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Company, the Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion each Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (MTS Systems 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two three (3) Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of each Issuing Bank only, the Borrowers’ 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer relevant Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to such Issuing Bank until and to the applicable Revolving Letter of Credit Issuer until extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the relevant Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with Section 2.24(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its funding obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by relevant Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Company or such Lender, reasonably satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Company, the Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion each Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Coach 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02); provided, that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent (x) no Event of Default has occurred and is continuing and (y) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Lenders’ Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer relevant Issuing Banks until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.22(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or such Issuing Bank, as the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion each Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
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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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02); provided, that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline LC Exposure or Revolving Letter with respect to Fronted Letters of Credit Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided Applicable Percentages but only to the extent that (A) no Default has occurred and is continuing at the time of such reallocation, (B) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such LC Exposure of such Defaulting Lender’s does not exceed the total of all non-Defaulting Lenders’ Commitments and (C) each Nonnon-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may does 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Nonnon-Defaulting Lender, ’s Commitment;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay Cash Collateralize the Borrower’s obligations corresponding to such Swingline LC Exposure of such Defaulting Lender (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.06(i) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes any portion of such LC Exposure of such Defaulting Lender’s Revolving Letter of Credit Exposure Lender pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such LC Exposure of such Defaulting Lender’s Letter of Credit Exposure Lender during the period such LC Exposure of such Defaulting Lender’s Revolving Letter of Credit Exposure Lender is Cash Collateralized, ;
(iv) if the Revolving Letter of Credit such LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or Applicable Percentages; and
(v) if all or any portion of such LC Exposure of such Defaulting Lender’s Revolving Letter of Credit Exposure Lender is neither reallocated nor Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit any LC Issuer or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such LC Exposure of such Defaulting Lender’s Revolving Letter of Credit Exposure Lender shall be payable to the applicable Revolving Letter of Credit Issuer Fronting Banks until and to the extent that such Revolving Letter of Credit LC Exposure is reallocated and/or Cash Collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;Collateralized; and
(d) the Swingline so long as such Lender will not is a Defaulting Lender, no Fronting Bank shall be required to fund issue, amend or increase any Swingline Loans Fronted Letter of Credit, unless the Swingline Lender it is reasonably 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 2.21(c), and participating interests in any exposure that would result from the exposure to such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.21(c)(i) (and such Defaulting Lender is eliminated shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or fully covered by the Revolving Credit Commitments (ii) any Fronting 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 Fronting Bank shall be required to issue, amend or increase any Letter of the Non-Defaulting Lenders or a combination thereof in accordance Credit, unless such Fronting Bank shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to such Fronting Bank to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Borrower and the Revolving Letter of Credit Issuers agree in writing in their discretion each Fronting Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment, (ii) on such date such Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for such Lender will cease to be hold such Loans in accordance with its Applicable Percentage and (iii) if the Borrower has been required to Cash Collateralize all or a portion of such Lender’s LC Exposure as a result of such Lender having been a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Lender, the amount of Cash Collateral so provided (to the extent not previously applied by the Administrative Agent) shall be promptly returned to the Borrower and any Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderBorrower.
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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:
(a) fees Facility Fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.06(a);
(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 amendment, waiver or other modification pursuant to Section 10.07); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline L/C Exposure or Revolving Letter of Credit Swing Line Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the L/C Exposure and Swing Lien Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Shares, but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit L/C Exposure plus its Swingline and Swing Line Exposure may does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Lenders’ Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenderseffected, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwise, the each Borrower shall within two Business Days following notice by the Administrative Agent (x) first, prepay cash collateralize for the benefit of the applicable Issuing Bank only such Swingline Borrower’s obligations corresponding to such Defaulting Lender’s L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Article VII for so long as such L/C Exposure is outstanding and (y) second, Cash Collateralize prepay outstanding Swing Line Loans in an amount corresponding to such Defaulting Lender’s Revolving Letter of Credit Swing Line Exposure (after giving effect to any partial reallocation pursuant to clause (i) above), in accordance with the procedures set forth in Section 3.8 for so long as such Revolving Letter of Credit Exposure is outstanding, ;
(iii) if the a Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit L/C Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the such Borrower shall not be required to pay any fees L/C Participation Fees to such Defaulting Lender pursuant to Section 4.1(c2.06(c) with respect to such Defaulting Lender’s Letter of Credit L/C Exposure during the period such Defaulting Lender’s Revolving Letter of Credit L/C Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit L/C Exposure of the Non-Defaulting Lenders Lender is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.06(a) and Section 2.06(c) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Shares; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit L/C Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all fees Facility Fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such L/C Exposure) and L/C Participation Fees payable under Section 4.1(c2.06(c) with respect to such Defaulting Lender’s Revolving Letter of Credit L/C Exposure shall be payable to such Issuing Bank until and to the applicable Revolving extent that such L/C Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender (i) each Issuing Bank shall not be required to issue, amend or increase any Letter of Credit Issuer until such Revolving Letter of Credit unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C Exposure is Cash Collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the applicable Borrowers in accordance with the requirements Section 2.21(c), and participating interests in any newly issued or increased Letter of Section 2.16(b) above or otherwise Credit shall be allocated among non-Defaulting Lenders in a manner reasonably satisfactory consistent with Section 2.21(c)(i) (and such Defaulting Lender shall not participate therein) and (ii) each Swing Line Lender shall not be required to make any Swing Line Loan unless it is satisfied that the applicable related exposure and the Defaulting Lender’s then outstanding Swing Line Exposure will be 100% covered by the Revolving Letter Commitments of Credit Issuer;
the non-Defaulting Lenders, and participating interests in any Swing Line Loans shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.21(c)(i) (dand such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the Swingline date hereof and for so long as such event shall continue or (ii) any Swing Line Lender will or any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Swing Line Lender shall not be required to fund any Swingline Loans Swing Line Loan and such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swing Lien Lender or such Issuing Bank shall have entered into arrangements with the Swingline applicable Borrowers or such Lender is reasonably satisfied that any exposure that would result from the exposure satisfactory to such Defaulting Swing Lien Lender is eliminated or fully covered by such Issuing Bank to defease any risk to it in respect of such Lender hereunder. In the Revolving Credit Commitments of event that the Non-Defaulting Lenders or a combination thereof in accordance with the requirements of Section 2.16(b) above; and
(e) If the BorrowerAdministrative Agent, the Administrative Agent Borrowers, each Issuing Bank and the Revolving Letter of Credit Issuers each Swing Line Lender each agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the L/C Exposure and Swing Line 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 as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Share.
Appears in 1 contract
Samples: Five Year Revolving Credit Facility Agreement (Xylem Inc.)
Defaulting Lenders. Notwithstanding any 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.5.1;
(b) the Commitment and Outstanding 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 or waiver pursuant to Section 8.2), provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically and LC Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ Outstanding Credit Commitment Percentage; provided that Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (Ay) the respective Credit Extensions of each Nonnon-Defaulting Lender do not, after giving effect to such reallocation, exceed such non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitment;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the applicable Issuer 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.18(k) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.18(d) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.18(d) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Pro Rata Share; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit any Issuer or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.18(d) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer until such Revolving Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuers shall not be required to issue, extend the expiry of or increase the amount of any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure and 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 2.27(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 2.27(c)(i) (and such Defaulting Lender shall not participate therein).
(i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the Third Restatement Date and for so long as such event shall continue or (ii) the Swingline Lender or any 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, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuers shall not be required to issue, amend to extend the expiry of or increase the amount of any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuers, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuers, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion each Issuer each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Pro Rata Share.
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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:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Facility Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Revolving Facility Commitment and Revolving Facility 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 10.08); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit L/C Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such the Swingline Exposure and Revolving Letter of Credit L/C Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Pro Rata Shares of the Revolving Facility but only to the extent the sum of all non-Defaulting Lenders’ Revolving Facility Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and Revolving L/C Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonnon-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 Lenders’ Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Facility Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two Business Days following notice by the Administrative Agent shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s Revolving L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.05(j) for so long as such Revolving Letter of Credit L/C Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit L/C Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit Revolving L/C Exposure during the period such Defaulting Lender’s Revolving Letter of Credit L/C Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit L/C Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Pro Rata Shares of the Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Facility Commitments; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit L/C Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit L/C Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit L/C Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Revolving Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Revolving L/C Exposure will be 100% covered by the Revolving Facility Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.23(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Revolving Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.23(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Revolving Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and 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 will so notify the parties hereto, whereupon, as shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Pro Rata Share of the effective date specified in such notice and subject Revolving Facility Commitments; provided that no adjustments will be made retroactively with respect to any conditions set forth therein, fees accrued or payments made by or on behalf of the Borrower while such Lender will cease to be was a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) shall be reallocated back to such Lender; provided thatand 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 that Lender’s having been a Defaulting Lender.
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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:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Lenders’ Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Borrowers shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize, for the benefit of the Issuing Bank, the Borrowers’ 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Borrowers cash collateralize any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(cSections 2.12(a) and 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will Issuing Bank shall not be required to fund issue, amend or increase any Swingline Loans Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.20(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to the Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Bank shall have entered into arrangements with the Borrowers or such Lender, satisfactory to the Issuing Bank to defease any risk in respect of such Lender hereunder. In the event that each of the Administrative Agent, the Borrowers, the Issuing Bank and the Swingline Lender is reasonably satisfied agrees 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 a combination thereof in accordance with the requirements of Section 2.16(b) above; and
(e) If the Borrower, the Administrative Agent and the Revolving Letter of Credit Issuers agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed 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 the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 or waiver pursuant to Section 9.02);
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically and LC Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Commitments and (By) neither the conditions set forth in Section 4.02 are satisfied at 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time; and
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b2.22(c), the Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b2.22(c), then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or Applicable Percentages; or
(v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b2.22(c), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12.(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until such Revolving Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;; and
(d) so long as any Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with Section 2.22(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 2.22(c)(i) (and Defaulting Lenders shall not participate therein). In the event that the Administrative Agent, the Company, the Issuing Banks and the Swingline Lender is reasonably satisfied each agrees 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 a combination thereof in accordance with the requirements of Section 2.16(b) above; and
(e) If the Borrower, the Administrative Agent and the Revolving Letter of Credit Issuers agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Molex 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:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.12;
(b) the Commitment and 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 9.02); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically and LC Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata that are Revolving Lenders in accordance with their respective Applicable Percentages, but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Lenders’ Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (in each case after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(cSections 2.12(a) and 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as any Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.25(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 2.25(c)(i) (and such Defaulting Lender shall not participate therein).
(i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments each of the Non-Defaulting Lenders or a combination thereof in accordance with the requirements of Section 2.16(b) above; and
(e) If Administrative Agent, the Borrower, the Administrative Agent Issuing Banks and the Revolving Letter of Credit Issuers agree in writing in their discretion Swingline Lender agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
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Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Revolving Commitment and Revolving 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 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes be- comes a Defaulting Lender
(A) in the event that the Defaulting Lender is not an Affiliated Lender, then then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Applicable Percentages but only to the extent that (x) the sum of all or any portion of the non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments and (y) 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 so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.05(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting LenderLend- er’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting De- faulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocatedcash collateralized; and
(B) in the event that the Defaulting Lender is an Affiliated Lender, then:
(i) the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure in accordance with the procedures set forth in Section 2.05(j) for so long as such LC Exposure is outstanding;
(cii) no Revolving Letter if the Borrower cash collateralizes any portion of Credit Issuer will such Defaulting Lender’s LC Exposure pursuant to clause (i) above, the Borrower shall not be required to issue pay any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is eliminated cash collateralized;
(iii) if the prepayment or fully covered by the Revolving Credit Commitments cash collateralization described in clause (i) above cannot, or can only partially, be effected, all or any part of the NonSwingline Exposure and LC Exposure of such Defaulting Lender (after giving effect to any prepayment or cash collateralization pursuant to Section 2.21(c)(B)(i)) shall be reallocated among the non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory their respective Applicable Percentages but only to the applicable extent that (x) the sum of all non-Defaulting Lenders’ Revolving Letter Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of Credit Issuerall non-Defaulting Lenders’ Revolving Commitments and (y) the conditions set forth in Section 4.02 are satisfied at such time;
(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (iii) above, then the fees payable to the Lenders pursuant to Section 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (iii) above, then, without prejudice to any rights or remedies of the Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.21(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 2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender’s parent shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
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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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) if If any Swingline L/C Exposure or Revolving Letter of Credit Swing Line Exposure exists at the time a Lender becomes a Defaulting Lender, then and the Commitments have not been terminated in accordance with Section 7.3, then:
(i) so long as no Default and no Prepayment Event shall have occurred and be continuing, all or any part of such Revolving Letter of Credit the L/C Exposure or Swing Line Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Lenders that are not Defaulting Lenders (“Non-Defaulting Lenders pro rata Lenders”) in accordance with their respective Ratable Shares (disregarding any Defaulting Lender’s Revolving Credit Commitment Percentage; provided Commitment) but only to the extent that (A) each Non-Defaulting Lender’s total Revolving Letter of Credit Exposure plus its Swingline Exposure may does 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, reallocation.
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two three Business Days following notice by any Issuing Bank or the Administrative Agent Swing Line Bank, first (x) first, prepay cover the exposure of the Swing Line Bank to such Swingline Defaulting Lender’s Swing Line Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) by prepaying Swing Line Advances in an amount sufficient to permit such reallocation to be effected completely or providing cash collateral or a letter of credit to the Swing Line Bank, and second (y) second, Cash Collateralize cover the exposure of such Issuing Bank to such Defaulting Lender’s Revolving Letter of Credit L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above)) by prepaying Revolving Credit Advances in an amount sufficient to permit such reallocation to be effected completely or providing cash collateral or a letter of credit to such Issuing Bank; provided that in each case of clauses (x) and (y) above, such cash collateral or letter of credit shall be released promptly upon the earliest of, (A) so long as no Default and no Prepayment Event shall have occurred and be continuing, the reallocation of the Defaulting Lender’s L/C Exposure and Swing Line Exposure among Non-Defaulting Lenders in accordance with clause (i) above, (B) the procedures set forth termination of the Defaulting Lender status of the applicable Lender or (C) the existence of excess cash collateral or letter of credit coverage (in Section 3.8 for so long as which case, the amount equal to such Revolving Letter excess cash collateral or letter of Credit Exposure is outstanding, credit coverage shall be released);
(iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit Exposure pursuant to the requirements of this Section 2.16(b), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Revolving Letter of Credit Exposure is Cash Collateralized, (iv) if the Revolving Letter of Credit L/C Exposure of the any Non-Defaulting Lenders Lender is reallocated pursuant to the requirements of this Section 2.16(b2.15(a), then the fees payable to the Lenders such Non-Defaulting Lender pursuant to Section 4.1(c2.4(b)(i) shall be adjusted in accordance with such Non-Defaulting Lenders’ 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 Revolving Letter Ratable Share of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or total L/C Exposure; and
(viv) if any Defaulting Lender’s Revolving Letter of Credit L/C Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b2.15(a), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 4.1(c2.4(b)(i) with respect to such Defaulting Lender’s Revolving Letter Ratable Share of Credit the total L/C Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until such Revolving Letter of Credit Defaulting Lender’s L/C Exposure is Cash Collateralized cash collateralized, backed by a letter of credit and/or reallocated;.
(cb) So long as any Lender is a Defaulting Lender, no Revolving Letter of Credit Issuer will Issuing Bank shall be required to issue Issue, amend or increase any new Revolving Letter of Credit or Credit, and no Swing Line Bank shall be required to amend make any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofSwing Line Advance, unless the applicable Revolving Letter of Credit Issuer Issuing Bank or the Swing Line Bank, as the case may be, is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated related L/C Exposure or fully Swing Line Exposure, as the case may be, will be 100% covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization Lenders, cash collateral or a combination thereof letter of credit provided by the Borrower, and participating interests in accordance with the requirements of Section 2.16(b) above any such newly Issued or otherwise in a manner reasonably satisfactory to the applicable Revolving increased Letter of Credit Issuer;
(d) the Swingline Lender will not or Swing Line Advance shall be required to fund any Swingline Loans unless the Swingline Lender is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the allocated among Non-Defaulting Lenders or in a combination thereof in accordance manner consistent with the requirements of Section 2.16(b2.15(a)(i) above; and(and Defaulting Lenders shall not participate therein).
(ec) No Revolving Credit Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.15, performance by the Borrower of its obligations shall not be excused or otherwise modified as a result of the operation of this Section 2.15. The rights and remedies against a Defaulting Lender under this Section 2.15 are in addition to any other rights and remedies which the Borrower, the Administrative Agent, each Issuing Bank, the Swing Line Bank or any Lender may have against such Defaulting Lender.
(d) If the Borrower, the Administrative Agent Agent, the Swing Line Bank and the Revolving Letter of Credit Issuers each Issuing Bank agree in writing in their discretion reasonable determination that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon, whereupon as of the effective date specified in such notice and subject to any conditions set forth thereintherein (which may include arrangements with respect to any cash collateral or letters of credit), that Lender will, to the extent applicable, purchase at par that portion of outstanding Advances of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Credit Exposure to be held on a pro rata basis by the Lenders in accordance with their Ratable Shares (without giving effect to Section 2.15(a)), 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 Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) shall be reallocated back to such Lender; provided thatthat no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to 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.
(e) Notwithstanding anything to the contrary contained in this Agreement, any payment of principal, interest, facility fees, Letter of Credit commissions or other amounts received by the Administrative Agent for the account of any Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity, pursuant to Article VII 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 such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to each Issuing Bank or the Swing Line Bank hereunder; third, if so determined by the Administrative Agent or requested by each Issuing Bank, to be held as cash collateral for future funding obligations of such Defaulting Lender in respect of any participation in any Letter of Credit; fourth, as the Borrower may request (so long as no Default and no Prepayment Event shall have occurred and be continuing), to the funding of any Advance in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in the L/C Cash Collateral Account and released in order to satisfy obligations of such Defaulting Lender to fund Advances under this Agreement; sixth, to the payment of any amounts owing to the Lenders, each Issuing Bank or the Swing Line Bank as a result of any judgment of a court of competent jurisdiction obtained by any Lender, Issuing Bank or the Swing Line Bank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default and no Prepayment Event shall have occurred and be continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Advance in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Advances were made or the related Letters of Credit were issued at a time when the applicable conditions set forth in Article IV were satisfied or waived, such payment shall be applied solely to pay the Advances of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Advances of such Defaulting Lender and provided further that any amounts held as cash collateral for funding obligations of a Defaulting Lender shall be returned to such Defaulting Lender upon the termination of this Agreement and the satisfaction of such Defaulting Lender’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.15 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
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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:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.11;
(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 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.05(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.11(a) and Section 2.11(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages;
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit Fees payable under Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.05(j), 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 2.19(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees Commitment Fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.5(a);
(b) the Commitments (and Participation Interests therein, if any), or if the Commitments have been terminated, the outstanding Revolving Loans and Participation Interests (including the Participation Interests of the Issuing Lender in any Letters of Credit and of the Swingline Lender in Swingline Loans), 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 9.1); provided that this clause (b) shall not apply in the case of a waiver, amendment or modification requiring the consent of each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LOC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LOC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Lender as in effect at Percentages but only to the time extent the sum of such reallocation and (B) neither such reallocation nor any payment by a Nonall non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Lenders’ Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against Exposures plus such Defaulting Lender or cause such Defaulting Lender to be a NonLender’s Swingline Exposure and LOC Exposure does not exceed the total of all non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LOC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 for so long as such Revolving Letter of Credit LOC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LOC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.5(b) with respect to such Defaulting Lender’s Letter of Credit LOC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LOC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LOC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.5(a) and Section 2.5(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay any fees to the Non-Defaulting Lender pursuant to Section 4.1(cPercentages; and
(v) with respect to if all or any portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LOC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all fees Letter of Credit Fees payable under Section 4.1(c2.5(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LOC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LOC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LOC 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 2.20(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LOC 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 hold such Loans in accordance with its Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderCommitment Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a); CH\2058888.7
(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 9.02); provided, that, except as otherwise provided in Section 9.02 this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(bc) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Applicable Percentages but only to the extent that the sum of all or any portion of the non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.21(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements CH\2058888.7 in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Chicos Fas 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02); provided, that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Applicable Percentages but only to the extent that the sum of all or any portion of the non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two five (5) Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the Borrowers’ 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with Section 2.25(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 2.25(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Company or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Company, the Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 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 will so notify the parties heretoshall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage and (ii) any cash, whereuponor portion thereof, as of applicable, provided by the effective date specified in such notice and 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 Company as cash collateral under this Section 2.25 shall be promptly released and returned to the Borrower and any Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderCompany.
Appears in 1 contract
Samples: Credit Agreement (Bruker 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:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.5(a);
(b) the Revolving Commitment and Revolving Extensions of Credit 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 10.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit L/C Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and L/C Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Commitment Percentage; provided that (A) each Non-plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and L/C Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Lenders’ Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Lender only the Company’s obligations corresponding to such Defaulting Lender’s L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 8 for so long as such Revolving Letter of Credit L/C Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit L/C Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c3.3(a) with respect to such Defaulting Lender’s Letter of Credit L/C Exposure during the period such Defaulting Lender’s Revolving Letter of Credit L/C Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit L/C Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.5(a) and Section 3.3(a) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit L/C Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees payable under Section 4.1(c2.5(a) that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such L/C Exposure) and all fees payable under Section 3.3(a) with respect to such Defaulting Lender’s Revolving Letter of Credit L/C Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Lender until and to the extent that such Revolving Letter of Credit L/C Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding L/C Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with Section 2.19(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Lender, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Company or such Lender, satisfactory to the Swingline Lender or the Issuing Lender, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Company, the Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Lender each agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and L/C 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 hold such Loans in accordance with its Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderPercentage.
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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:
(ah) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.11(a);
(i) 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 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(j) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Applicable Percentages but only to the extent that (x) the sum of all or any portion of the non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) 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 so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two three Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.05(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.11(a) and Section 2.11(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all Unused fees that otherwise would have been payable to such Defaulting Lender and letter of credit fees payable under Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(ck) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to so long as such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-a Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(d) Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.19(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i) (and such Defaulting Lender shall not participate therein). If a Bankruptcy Event with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Masimo 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:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.8(a);
(b) the Revolving Commitment and Revolving Extensions of Credit 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 10.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit L/C Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of the Swingline Exposure (other than the portion of such Revolving Letter Swingline Exposure referred to in clause (ii) of Credit the definition of such term) and L/C Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Commitment Percentage; provided that (A) each Non-plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and L/C Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Lenders’ Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Borrowers shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Lender only the Borrowers’ obligations corresponding to such Defaulting Lender’s L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 8 for so long as such Revolving Letter of Credit L/C Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Borrowers cash collateralize any portion of such Defaulting Lender’s Revolving Letter of Credit L/C Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c3.3(a) with respect to such Defaulting Lender’s Letter of Credit L/C Exposure during the period such Defaulting Lender’s Revolving Letter of Credit L/C Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit L/C Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.8(a) and Section 3.3(a) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Lender’s Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit L/C Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees payable under Section 4.1(c3.3(a) with respect to such Defaulting Lender’s Revolving Letter of Credit L/C Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Lender until and to the extent that such Revolving Letter of Credit L/C Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuercash collateralized;
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding L/C Exposure will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or a combination thereof and/or cash collateral will be provided by the Borrowers in accordance with the requirements Section 2.24(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 2.16(b2.24(c)(i) above(and such Defaulting Lender shall not participate therein); and
(ei) If a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Lender shall occur following the Fourth Restatement Effective Date and for so long as such event shall continue, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender, the Fronting Lender or the Issuing Lender, as the case may be, shall have entered into arrangements with the Parent Borrower or such Lender, satisfactory to the Swingline Lender, the Fronting Lender or the Issuing Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder.
(ii) In the event that the Administrative Agent, the Parent Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Lender each agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and L/C 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 as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 hold such Loans in accordance with its Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderPercentage in accordance with its ratable share thereof.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.6;
(b) the Commitment and Outstanding 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 9.2); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Swing Line Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swing Line Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Outstanding Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swing Line Exposure plus its Swingline and LC Exposure may does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Swing Line Exposure and (y) second, cash collateralize for the benefit of the LC Issuer only the Company’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 Revolving 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 3.8 9.1 for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.22(d) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.6 and Section 2.22(d) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit LC Issuer or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.22(d) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit LC Issuer until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Swing Line Lender will shall not be required to fund any Swingline Loans Swing Line Loan and the LC Issuer shall not be required to issue, amend or increase any Facility LC, unless the Swingline Lender it is reasonably 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 Company in accordance with Section 2.27(c), and participating interests in any exposure that would result from the exposure to newly made Swing Line Loan or any newly issued or increased Facility LC shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.27(c)(i) (and such Defaulting Lender is eliminated shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or fully covered by (ii) the Revolving Credit Commitments of Swing Line Lender or the Non-Defaulting Lenders LC Issuer has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or a combination thereof more other agreements in accordance which such Lender commits to extend credit, the Swing Line Lender shall not be required to fund any Swing Line Loan and the LC Issuer shall not be required to issue, amend or increase any Facility LC, unless the Swing Line Lender or the LC Issuer, as the case may be, shall have entered into arrangements with the requirements Company or such Lender, satisfactory to the Swing Line Lender or the LC Issuer, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Agent, the Administrative Agent Company, the Swing Line Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion LC Issuer each agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Administrative Agent will so notify the parties hereto, whereupon, as Swing Line Exposure and LC Exposure of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral Lenders shall be promptly returned readjusted to reflect the Borrower and any Revolving Letter inclusion of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderCommitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swing Line Loans) as the Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that Applicable Percentages but only to the extent (A) each Nonthe sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit LC Exposure plus its Swingline Exposure may does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Commitments 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, no Default has occurred and is continuing;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Swingline 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) the Swingline Lender will not be required to fund any Swingline Loans unless the Swingline so long as such 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 a combination thereof in accordance with the requirements of Section 2.16(b) above; and
(e) If the Borrower, the Administrative Agent and the Revolving Letter of Credit Issuers agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will so notify be 100% covered by the parties hereto, whereupon, as Commitments of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a non-Defaulting Lender and Lenders and/or cash collateral will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to provided by the Borrower and any Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting Lender.in accordance with
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.11(a);
(b) the Commitment and 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 10.02); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each Lender affected thereby if such amendment, waiver or other modification would affect such Defaulting Lender differently than the other Lenders affected thereby in any material adverse manner;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically term) shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Applicable Percentages but only to the extent that (x) the sum of all or any portion of the non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) 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 so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall shall, without prejudice to any right or remedy available to it hereunder or under law, within two (2) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.05(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, outstanding ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.11(a) and Section 2.11(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.19(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i) (and such Defaulting Lender shall not participate therein).
(i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied or the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments each of the Non-Defaulting Lenders or a combination thereof in accordance with the requirements of Section 2.16(b) above; and
(e) If Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Stewart Information Services 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 10.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that Exposure (Aafter giving effect to such reallocation) each Nondoes not exceed the total of all non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) firstAgent, prepay Cash Collateralize for the benefit of the Issuing Lenders only the Borrower’s obligations corresponding to such Swingline 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 Revolving 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 3.8 2.04(k) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b)(i) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, ;
(iv) if the Revolving Letter of Credit LC Exposure of such Defaulting Lender is reallocated to the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b)(i) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Applicable Percentages and the Borrower shall not be required to pay any fees after giving effect to the Defaulting Lender pursuant to Section 4.1(c) with respect to reallocation of such Defaulting Lender’s Revolving Letter LC Exposure pursuant to clause (i) above; and
(v) if all or any portion of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither reallocated nor Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Lender or any other Lender hereunder, all fees payable under Section 4.1(c2.12(b)(i) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Lenders until and to the extent that such Revolving Letter of Credit LC Exposure is reallocated and/or Cash Collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;Collateralized; and
(d) so long as such Lender is a Defaulting Lender, no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the Swingline 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 2.20(c), and participating interests in any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender will shall not participate therein);
(i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Lender shall occur following the Third Restatement Effective Date and for so long as such event shall continue or (ii) any Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Lender shall not be required to fund issue, amend or increase any Swingline Loans Letter of Credit, unless such Issuing Lender shall have entered into arrangements with the Swingline Lender is reasonably satisfied that any exposure that would result from the exposure Borrower or such Lender, satisfactory to such Defaulting Issuing Lender is eliminated or fully covered by to defease any risk to it in respect of such Lender hereunder. In the Revolving Credit Commitments of event that the Non-Defaulting Lenders or a combination thereof in accordance with the requirements of Section 2.16(b) above; and
(e) If the BorrowerAdministrative Agent, the Administrative Agent Borrower and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Lenders each agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then 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 of the Loans of the other Lenders as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Griffon 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 or waiver pursuant to Section 9.02); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically and LC Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Commitments and (By) neither the conditions set forth in Section 4.02 are satisfied at 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b2.22(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b2.22(c), then the fees payable to the Lenders pursuant to Section 4.1(cSections 2.12(a) and 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or Applicable Percentages; or
(v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b2.22(c), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until such Revolving Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(d) the Swingline Lender will not be required to fund any Swingline Loans unless the Swingline Lender is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance with the requirements of Section 2.16(b) above; and
(e) If the Borrower, the Administrative Agent and the Revolving Letter of Credit Issuers agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any 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 Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lenderbecomes, then and during the following provisions shall apply for so long as such Lender is period it remains, a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) if any Swingline Exposure or Revolving Letter of Credit L/C Exposure exists at the time a such Revolving Lender becomes a Defaulting LenderLender then so long as such Swingline Exposure or Revolving L/C Exposure exists, then (i) all or any part of such the Swingline Exposure and Revolving Letter of Credit L/C Exposure of such Defaulting Lender and shall automatically, for so long as such Swingline Exposure of such Defaulting Lender willand Revolving L/C Exposure is outstanding, 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 Pro Rata Percentages but only to the extent the sum of all non-Defaulting Revolving Credit Commitment PercentageLenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and Revolving L/C Exposure does not exceed the total of all non-Defaulting Revolving Lenders’ Revolving Commitments; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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 9.22, neither such reallocation nor any payment by a Nonnon-Defaulting Revolving Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Revolving Letter of Credit IssuersIssuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to no longer be a Non-Defaulting Lender, ;
(iib) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (a) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall shall, within two one Business Days Day following notice by the Administrative Agent Agent, (xi) first, prepay such Swingline Loans and (ii) second, cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s Revolving L/C Exposure (after giving effect to any partial reallocation pursuant to clause (ia) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.23(j) for so long as such Revolving Letter of Credit L/C Exposure is outstanding, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit Exposure pursuant to the requirements of this Section 2.16(b), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Revolving Letter of Credit Exposure is Cash Collateralized, (iv) if the Revolving Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(b), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Revolving Letter of Credit Exposure shall be payable to the applicable Revolving Letter of Credit Issuer until such Revolving Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(c) no Revolving Letter in furtherance of Credit Issuer will the foregoing, each of the Issuing Bank and the Swingline Lender is hereby authorized by the Borrower (which authorization is irrevocable and coupled with an interest) to give, in its discretion, through the Administrative Agent, a Borrowing Request pursuant to Section 2.03 in such amounts and in such times as may be required to issue any new Revolving (i) reimburse an outstanding L/C Disbursement, (ii) repay an outstanding Swingline Loan and/or (iii) cash collateralize the obligations of the Borrower in respect of outstanding Letters of Credit or Swingline Loans in an amount at least equal to the aggregate amount of the obligations (contingent or otherwise) of such Defaulting Lender in respect of such Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit IssuerSwingline Loan;
(d) so long as such Lender is a Defaulting Lender or if any Issuing Bank or the Swingline Lender will has a good faith and reasonable belief that any Lender has defaulted in fulfilling its obligations generally under other agreements in which it commits to extend credit, then (i) the Swingline Lender shall not be required to fund any Swingline Loans Loan and no Issuing Bank shall be required to issue, amend, renew, increase or extend any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the available Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with clauses (a) and (b) above, 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 clause (a) (and such Defaulting Lender shall not participate therein) and (ii) the Swingline Lender is reasonably satisfied may, upon prior written notice to the Borrower and the Administrative Agent, resign as Swingline Lender, effective at 5:00 p.m., New York City time, on a date specified in such notice (which date may not be less than 30 days after the date of such notice); provided that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered resignation by the Revolving Credit Commitments Swingline Lender will have no effect on its rights in respect of any outstanding Swingline Loans or on the obligations of the Non-Defaulting Lenders Borrower or a combination thereof in accordance any Lender under this Agreement with the requirements of Section 2.16(b) aboverespect to any such outstanding Swingline Loan; and
(e) If any amount paid by the Borrower or otherwise received by the Administrative Agent for the account of a Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts) will not be paid or distributed to such Defaulting Lender, but will instead be retained by the Administrative Agent in a segregated account until (subject to the last paragraph of this Section 2.26) the termination of the Commitments and payment in full of all obligations of the Borrower hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by Applicable Law, to the making of payments from time to time in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreement; second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank or the Swingline Lender (pro rata as to the respective amounts owing to each of them) under this Agreement; third, to the payment of post-default interest and then current interest due and payable to the Lenders hereunder other than Defaulting Lenders, ratably among them in accordance with the amounts of such interest then due and payable to them; fourth, to the payment of fees then due and payable to the non-Defaulting Lenders hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them; fifth, to pay principal and unreimbursed L/C Disbursements then due and payable to the non-Defaulting Lenders hereunder ratably in accordance with the amounts thereof then due and payable to them; sixth, to the ratable payment of other amounts then due and payable to the non-Defaulting Lenders; and, seventh, after the termination of the Commitments and payment in full of all obligations of the Borrower hereunder, to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct. In the event that the Administrative Agent, the Borrower, the Administrative Agent Issuing Banks and the Revolving Letter of Credit Issuers agree Swingline Lender each agrees in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Administrative Agent will shall so notify the parties hereto, whereupon, whereupon as of the effective date specified in such notice and subject to any conditions set forth thereintherein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.26(e)), such Lender will, to the extent applicable, purchase at par such portion of outstanding Loans of the other Lenders and/or make such other adjustments as the Administrative Agent may determine to be necessary to cause the Revolving Exposure, Revolving L/C Exposure and Swingline Exposure of the Revolving Lenders to be held in accordance with their Pro Rata Percentage in accordance with their respective Commitments, whereupon such Lender will cease to be a Defaulting Lender and will be a Nonnon-Defaulting Lender (and any applicable Cash Collateral shall such Revolving Exposure, Revolving L/C Exposure and Swingline Exposure of each Revolving Lender will automatically be promptly returned adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower and any Revolving Letter of Credit Exposure of while such Lender reallocated pursuant to the requirements of Section 2.16(b) shall be reallocated back to such was a Defaulting Lender; provided thatand provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Nonnon-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s Lxxxxx having been a Defaulting Lender. 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 Lxxxxx having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lxxxxx’s increased exposure following such reallocation.
Appears in 1 contract
Samples: Credit Agreement (NRG 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:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) if any Swingline Exposure or the Commitment and/or Revolving Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Revolving Letter 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 11.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(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 is then outstanding, all or any part of the Swingline Exposure and such Swingline LC Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each NonPercentages, but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the total of all non-Defaulting Lenders’ 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall, or shall cause the applicable Borrowers, within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the Company’s or the applicable 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 Revolving 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 3.8 2.05(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Borrowers cash collateralize any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized and such Lender remains a Defaulting Lender;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Credit Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;cash collateralized; and
(cd) no Revolving Letter of Credit Issuer will so long as such Lender is a Defaulting Lender, the Swingline Lender(s) shall not be required to issue fund any new Revolving Swingline Loan thereunder, and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the applicable Revolving Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Borrowers in accordance with the requirements Section 2.22(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Section 2.16(b) above or otherwise Credit shall be allocated among non-Defaulting Lenders in a manner reasonably satisfactory consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the applicable Revolving Letter of Credit Issuer;
date hereof and for so long as such event shall continue or (dii) the Swingline Lender(s) or the Issuing Bank has a good faith belief that any Lender will has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the applicable Swingline Lender shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the such Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure Issuing Bank, as the case may be, shall have entered into arrangements with the Company or such Lender, satisfactory to such Defaulting Swingline Lender is eliminated or fully covered by the Revolving Credit Commitments Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the Non-Defaulting Lenders or a combination thereof in accordance with event that the requirements of Section 2.16(b) above; and
(e) If the BorrowerAdministrative Agent, the Administrative Agent Company, the applicable Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for such Lender will cease to be a Defaulting Lender hold such Loans in accordance with its Revolving Credit Percentage and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 longer constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Schulman a 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:
(a) commitment fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.11(a);
; (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 10.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby; (c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then: (i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically term) shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided Applicable Percentages but only to the extent that (A) each Nonsuch reallocation does not, as to any non-Defaulting Lender, cause such non-Defaulting Lender’s Revolving Letter of Credit Exposure plus to exceed its Swingline 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitment; (ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.05(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ; (iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.11(b)(i) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized; (iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.11(a) and Section 2.11(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages Applicable Percentages; and the Borrower shall not be required to pay (v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all commitment fees that otherwise would have been payable under Section 4.1(c) to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Letter of Credit Exposure shall be payable to the applicable Revolving Letter of Credit Issuer until such Revolving Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer is reasonably satisfied Commitment that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered was utilized by the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(d) the Swingline Lender will not be required to fund any Swingline Loans unless the Swingline Lender is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance with the requirements of Section 2.16(b) above; and
(e) If the Borrower, the Administrative Agent and the Revolving Letter of Credit Issuers agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any 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 Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting Lender.54
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) if any Swingline Exposure or the Commitment and Revolving Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Revolving Letter 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 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(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 such is continuing, all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Lenders’ Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the Borrowers’ 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank, any Borrower or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with Section 2.24(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is or the Issuing Bank, as the case may be, shall have entered into arrangements with the Company or such Lender, reasonably satisfied satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder and the Issuing Lender agrees that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered cash collateral as contemplated by the Revolving Credit Commitments of preceding paragraph shall be sufficient to defease such risk. In the Non-Defaulting Lenders or a combination thereof in accordance with event that the requirements of Section 2.16(b) above; and
(e) If the BorrowerAdministrative Agent, the Administrative Agent Company, the Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Belden 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:
(aA) fees payable pursuant to Section 2.14(C)(i) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender;
(B) the Revolving Loan 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 supplemental agreement effecting an amendment or waiver pursuant to Section 4.1(a9.3); provided that this clause (B) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly adversely affected thereby;
(bC) if any Swingline Swing Line Exposure or Revolving Letter of Credit L/C Exposure exists is outstanding at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Swing Line Exposure of such Defaulting Lender and such Swingline L/C Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Obligations plus such Defaulting Lender’s Revolving Letter of Credit Swing Line Exposure plus its Swingline and L/C Exposure may does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Revolving Loan Commitments and (By) neither the conditions set forth in Section 5.2 are satisfied at 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Swing Line Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank such Defaulting Lender’s L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 3.11 for so long as such Revolving Letter of Credit L/C Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit L/C Exposure pursuant to the requirements of this Section 2.16(b2.24(C), the Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c3.8(A) with respect to such Defaulting Lender’s Letter of Credit L/C Exposure during the period such Defaulting Lender’s Revolving Letter of Credit L/C Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit L/C Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b2.24(C), then the fees payable to the Lenders pursuant to Section 4.1(c2.14(C)(i) and Section 3.8(A) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or relative Pro Rata Shares; and
(v) if any Defaulting Lender’s Revolving Letter of Credit L/C Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b2.24(C), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such L/C Exposure) and letter of credit fees payable under Section 4.1(c3.8(A) with respect to such Defaulting Lender’s Revolving Letter of Credit L/C Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until such Revolving Letter of Credit L/C Exposure is Cash Collateralized cash collateralized and/or reallocated;; and
(cD) no Revolving Letter of Credit Issuer will be required to issue so long as any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by a Defaulting Lender, the Revolving Credit Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(d) the Swingline Lender will Swing Line Bank shall not be required to fund any Swingline Loans Swing Line Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender it is reasonably satisfied that any the related exposure that would result from the exposure to such Defaulting Lender is eliminated or fully will be 100% covered by the Revolving Credit Loan Commitments of the Nonnon-Defaulting Lenders or a combination thereof and/or cash collateral will be provided by the Company in accordance with the requirements of Section 2.16(b) above; and
(e) If the Borrower2.24(C), the Administrative Agent and the Revolving participating interests in any such newly issued or increased Letter of Credit Issuers agree or newly made Swing Line Loan shall be allocated among non-Defaulting Lenders in writing a manner consistent with Section 2.24(C)(i) (and Defaulting Lenders shall not participate therein).
(i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swing Line Bank or the Issuing Bank has a good faith belief that any Lender has defaulted in their discretion fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swing Line Bank shall not be required to fund any Swing Line Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swing Line Bank or the Issuing Bank, as the case may be, shall have entered into arrangements with the Company or such Lender, satisfactory to the Swing Line Bank or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that a Lender the Administrative Agent, the Company, the Issuing Bank and the Swing Line Bank each agrees that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swing Line Loans and L/C Exposure 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 Loans of the other Lenders (other than Swing Line Loans) as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and 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 Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 order for each Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from hold such Lender’s having been a Defaulting LenderLoans in accordance with its Pro Rata Share.
Appears in 1 contract
Samples: Credit Agreement (Steelcase 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) 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 9.02); provided, that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Applicable Percentages but only to the extent that the sum of all or any portion of the non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the relevant Issuing Banks only the Borrowers’ 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer relevant Issuing Banks until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with Section 2.25(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 2.25(c)(i) (and such Defaulting Lender shall not participate therein).
(i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or such Issuing Bank, as the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Company or such Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Company, the Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion each Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties heretoshall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage, whereupon, as of the effective date specified in such notice and subject to any conditions set forth therein, 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 Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Company 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 Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such that Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (MTS Systems Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if at any time there exists a Revolving Credit Lender becomes that is a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
, (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) if any Swingline Exposure or Revolving Letter of Credit L/C Exposure exists at the such time a Lender becomes a Defaulting Lender, then (i) all or any part of such Revolving Letter of Credit the Swingline Exposure and L/C Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Revolving Credit Lenders that are not Defaulting Lenders pro rata in accordance with their respective Pro Rata Percentages but only to the extent the sum of all such non-Defaulting Lenders’ Revolving Credit Commitment PercentageExposures plus such Defaulting Lender’s Swingline Exposure and L/C Exposure does not exceed the total of all such non-Defaulting Lenders’ Revolving Credit Commitments; provided that (A) each Nonat no time shall any non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Nonnon-Defaulting Lender’s Revolving Credit Commitments, (ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.23(j) for so long as such Revolving Letter of Credit L/C Exposure is outstanding, (iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit L/C Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) L/C Participation Fees with respect to such Defaulting Lender’s Letter of Credit L/C Exposure during the period such Defaulting Lender’s Revolving Letter of Credit L/C Exposure is Cash Collateralizedcash collateralized, (iv) if the Revolving Letter of Credit L/C Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees Fees payable to the Lenders pursuant to Section 4.1(c2.05(c) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Pro Rata Percentages and the Borrower shall not be required to pay (v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit L/C Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all fees payable under Section 4.1(c) L/C Participation Fees with respect to such Defaulting Lender’s Revolving Letter of Credit L/C Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit L/C Exposure is Cash Collateralized reallocated and/or reallocated;
cash collateralized and (cb) no Revolving Letter of Credit Issuer will so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to issue fund any new Revolving Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereofCredit, unless the applicable Revolving Letter of Credit Issuer it is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding L/C Exposure will be entirely covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or and/or cash collateral will be provided by Cash Collateralization or a combination thereof the Borrower in accordance with the requirements Section 2.26(a), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Section 2.16(b) above or otherwise Credit shall be allocated among non-Defaulting Lenders in a manner reasonably satisfactory to consistent with Section 2.26(a)(i) (and such Defaulting Lender shall not participate therein). Without limiting Section 9.08, this Section 2.26 may not be amended, waived or otherwise modified without the applicable Revolving Letter prior written consent of Credit Issuer;
(d) the Administrative Agent, the Swingline Lender will not be required to fund any Swingline Loans unless the Swingline Lender is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance with the requirements of Section 2.16(b) above; and
(e) If the Borrower, the Administrative Agent and the Revolving Letter of Credit Issuers agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified in such notice and subject to any 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 Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderIssuing Bank.
Appears in 1 contract
Samples: Credit Agreement (Deltek, 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:
(a) facility fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Commitments, Term Loan Exposure and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or Required Facility Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata that are Revolving Lenders in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Percentages but only to the extent that (x) the sum of all or any portion of the such non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments and (y) the conditions set forth in Section 4.02(a) and Section 4.02(b) are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Borrowers shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the applicable Issuing Bank only the Borrowers’ 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Borrowers cash collateralize any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all facility fees payable pursuant to Section 2.12(b) that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender will Lenders shall not be required to fund any Swingline Loans Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless the applicable Swingline Lender or the applicable Issuing Bank, as the case may be, is reasonably satisfied that any the related exposure that would result from and the exposure to such Defaulting Lender is eliminated or fully Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or a combination thereof and/or cash collateral will be provided by the Borrowers in accordance with the requirements of Section 2.16(b) above; and
(e) If the Borrower2.20(c), the Administrative Agent and the Revolving participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit Issuers agree shall be allocated among non- Defaulting Lenders in writing in their discretion that a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) a Swingline Lender or an Issuing Bank has a good faith belief that is any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Swingline Lender shall not be required to fund any Swingline Loan and such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to such Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrowers, the Swingline Lenders and the Issuing Banks each agrees that a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 hold such Loans in accordance with its Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderPercentage.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Gramercy Property Trust)
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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) if any Swingline Exposure or the Commitment and Revolving Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Revolving Letter 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 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(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 such is continuing, all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the Borrowers’ 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank, any Borrower or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with Section 2.24(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is or the Issuing Bank, as the case may be, shall have entered into arrangements with the Company or such Lender, reasonably satisfied satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder and the Issuing Lender agrees that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered cash collateral as contemplated by the Revolving Credit Commitments of preceding paragraph shall be sufficient to defease such risk. In the Non-Defaulting Lenders or a combination thereof in accordance with event that the requirements of Section 2.16(b) above; and
(e) If the BorrowerAdministrative Agent, the Administrative Agent Company, the Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Belden 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that Applicable Percentages but only to the extent (A) each Nonthe sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Commitments 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, no Default has occurred and is continuing;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two three (3) Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.21(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Taleo 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 or waiver pursuant to Section 9.02); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically and LC Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Commitments and (By) neither the conditions set forth in Section 4.02 are satisfied at 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b2.21(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b2.21(c), then the fees payable to the Lenders pursuant to Section 4.1(cSections 2.12(a) and 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or Applicable Percentages; or
(v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b2.21(c), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until such Revolving Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;; and
(d) so long as any Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender it is reasonably satisfied that any the related exposure that would result from the exposure to such Defaulting Lender is eliminated or fully will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or a combination thereof and/or cash collateral will be provided by the Borrower in accordance with Section 2.21(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 2.21(c)(i) (and Defaulting Lenders shall not participate therein). In the requirements of Section 2.16(b) above; and
(e) If event that the Administrative Agent, the Borrower, the Administrative Agent Issuing Bank and the Revolving Letter of Credit Issuers agree in writing in their discretion Swingline Lender each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Deluxe 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.6;
(b) the Commitment and Outstanding 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 8.2); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Swing Line Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swing Line Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Applicable Percentages but only to the extent the sum of all non-Defaulting Lenders’ Outstanding Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swing Line Exposure plus its Swingline and LC Exposure may does not in any event exceed the Revolving Credit Commitment total of such Nonall 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Lenders’ Commitments;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Swing Line Exposure and (y) second, cash collateralize for the benefit of the Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 8.1 for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.22(d) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.6 and Section 2.22(d) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.22(d) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Swing Line Lender will shall not be required to fund any Swingline Loans Swing Line Loan and the Issuing Bank shall not be required to issue, amend or increase any Facility LC, unless the Swingline Lender it is reasonably 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 2.27(c), and participating interests in any exposure that would result from the exposure to newly made Swing Line Loan or any newly issued or increased Facility LC shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.27(c)(i) (and such Defaulting Lender is eliminated shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or fully covered by (ii) the Revolving Credit Commitments of Swing Line Lender or the Non-Defaulting Lenders Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or a combination thereof more other agreements in accordance which such Lender commits to extend credit, the Swing Line Lender shall not be required to fund any Swing Line Loan and the Issuing Bank shall not be required to issue, amend or increase any Facility LC, unless the Swing Line Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swing Line Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Agent, the Borrower, the Administrative Agent Swing Line Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Administrative Agent will so notify the parties hereto, whereupon, as Swing Line Exposure and LC Exposure of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral Lenders shall be promptly returned readjusted to reflect the Borrower and any Revolving Letter inclusion of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderCommitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swing Line Loans) as the Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02); provided, that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders or each directly affected Lender;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the NonLenders that are not Defaulting Lenders (the “non-Defaulting Lenders pro rata Lenders”) in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Applicable Percentages but only to the extent that the sum of all or any portion of the non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, Cash Collateralize cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s Revolving Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above), ) in accordance with the procedures set forth in Section 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the non-Defaulting Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other non-Defaulting Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.21(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a reasonable, good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) shall be reallocated back to such LenderLoans in accordance with its Applicable Percentage; provided that, 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 that Lender having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any 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:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.5.1;
(b) the Revolving Commitment and, Outstanding Revolving Credit Exposure and outstanding principal amount of the Term Loans 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 or waiver pursuant to Section 8.2), provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a Revolving Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically and LC Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the NonnonNon-Defaulting Lenders pro rata in accordance with their respective Pro Rata Shares but only to the extent (x) the sum of all nonNon-Defaulting Lenders’ Outstanding Revolving Credit Commitment Percentage; provided that Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the total of all nonNon-Defaulting Lenders’ Revolving Commitments and (Ay) the respective Credit Extensions (other than in respect of Term Loans) of each NonnonNon-Defaulting Lender do not, after giving effect to such reallocation, exceed such nonNon-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitment;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the applicable Issuer 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.18(k) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.18(d) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the NonnonNon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Revolving Lenders pursuant to Section 4.1(c2.18(d) shall be adjusted in accordance with such NonnonNon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Pro Rata Share; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit any Issuer or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.18(d) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer until such Revolving Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;; and
(d) so long as such Lender is a Defaulting Lender and a Revolving Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuers shall not be required to issue, extend the expiry of or increase the amount of any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure and LC Exposure 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 2.27(c), and participating interests in 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 2.27(c)(i) (and such Defaulting Lender shall not participate therein).
(i) a Bankruptcy Event with respect to a Parent of any Revolving Lender shall occur following the Third Restatement Date and for so long as such event shall continue or (ii) the Swingline Lender or any Issuer 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, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuers shall not be required to issue, amend to extend the expiry of or increase the amount of any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuers, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Revolving Lender, satisfactory to the Swingline Lender or the Issuers, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Revolving Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion each Issuer each agrees that a Revolving Lender that is has become a Defaulting Lender should no longer be deemed 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 Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 hold such Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Pro Rata Share.
Appears in 1 contract
Samples: Credit Agreement (Bemis 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:
(a) fees shall cease to accrue on the unfunded portion of the Available Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) if any Swingline Exposure or the Commitment and Revolving Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part of such Revolving Letter 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 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(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 shall be continuing, all or any part of the Swingline Exposure and such Swingline LC Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided Applicable Percentages but only to the extent that (A) each Nonsuch reallocation does not, as to any non-Defaulting Lender, cause such non-Defaulting Lender’s Revolving Letter of Credit Exposure plus to exceed its Swingline 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitment;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.21(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Banks have a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Banks each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lenderbecomes, then and during the following provisions shall apply for so long as such Lender is period it remains, a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b) if any Swingline Exposure or Revolving Letter of Credit L/C Exposure exists at the time a such Revolving Lender becomes a Defaulting LenderLender then so long as such Swingline Exposure or Revolving L/C Exposure exists, then (i) all or any part of such the Swingline Exposure and Revolving Letter of Credit L/C Exposure of such Defaulting Lender and shall automatically, for so long as such Swingline Exposure of such Defaulting Lender willand Revolving L/C Exposure is outstanding, 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 Pro Rata Percentages but only to the extent the sum of all non-Defaulting Revolving Credit Commitment PercentageLenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and Revolving L/C Exposure does not exceed the total of all non-Defaulting Revolving Lenders’ Revolving Commitments; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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 Nonnon-Defaulting Revolving Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Revolving Letter of Credit IssuersIssuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to no longer be a Non-Defaulting Lender, ;
(iib) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (a) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall shall, within two one Business Days Day following notice by the Administrative Agent Agent, (xi) first, prepay such Swingline Loans and (ii) second, cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s Revolving L/C Exposure (after giving effect to any partial reallocation pursuant to clause (ia) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.23(j) for so long as such Revolving Letter of Credit L/C Exposure is outstanding, (iii) if the Borrower Cash Collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit Exposure pursuant to the requirements of this Section 2.16(b), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Revolving Letter of Credit Exposure is Cash Collateralized, (iv) if the Revolving Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b), then the fees payable to the Lenders pursuant to Section 4.1(c) shall be adjusted in accordance with such Non-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit Exposure is neither Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.16(b), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer or any Lender hereunder, all fees payable under Section 4.1(c) with respect to such Defaulting Lender’s Revolving Letter of Credit Exposure shall be payable to the applicable Revolving Letter of Credit Issuer until such Revolving Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(c) no Revolving Letter in furtherance of Credit Issuer will the foregoing, each of the Issuing Bank and the Swingline Lender is hereby authorized by the Borrower (which authorization is irrevocable and coupled with an interest) to give, in its discretion, through the Administrative Agent, a Borrowing Request pursuant to Section 2.03 in such amounts and in such times as may be required to issue any new Revolving (i) reimburse an outstanding L/C Disbursement, (ii) repay an outstanding Swingline Loan and/or (iii) cash collateralize the obligations of the Borrower in respect of outstanding Letters of Credit or Swingline Loans in an amount at least equal to the aggregate amount of the obligations (contingent or otherwise) of such Defaulting Lender in respect of such Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit IssuerSwingline Loan;
(d) so long as such Lender is a Defaulting Lender or if any Issuing Bank or the Swingline Lender will has a good faith and reasonable belief that any Lender has defaulted in fulfilling its obligations generally under other agreements in which it commits to extend credit, then (i) the Swingline Lender shall not be required to fund any Swingline Loans Loan and no Issuing Bank shall be required to issue, amend, renew, increase or extend any Letter of Credit, unless the Swingline Lender it is reasonably satisfied that any the related exposure that would result from the exposure to such Defaulting Lender is eliminated or fully will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or a combination thereof and/or cash collateral will be provided by the Borrower in accordance with the requirements of Section 2.16(bclauses (a) and (b) above, 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 clause (a) (and such Defaulting Lender shall not participate therein) and (ii) the Swingline Lender may, upon prior written notice to the Borrower and the Administrative Agent, resign as Swingline Lender, effective at 5:00 p.m., New York City time, on a date specified in such notice (which date may not be less than 30 days after the date of such notice); provided that such resignation by the Swingline Lender will have no effect on its rights in respect of any outstanding Swingline Loans or on the obligations of the Borrower or any Lender under this Agreement with respect to any such outstanding Swingline Loan; and
(e) If any amount paid by the Borrower or otherwise received by the Administrative Agent for the account of a Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts) will not be paid or distributed to such Defaulting Lender, but will instead be retained by the Administrative Agent in a segregated account until (subject to the last paragraph of this Section 2.26) the termination of the Commitments and payment in full of all obligations of the Borrower hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by Applicable Law, to the making of payments from time to time in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreement; second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank or the Swingline Lender (pro rata as to the respective amounts owing to each of them) under this Agreement; third, to the payment of post-default interest and then current interest due and payable to the Lenders hereunder other than Defaulting Lenders, ratably among them in accordance with the amounts of such interest then due and payable to them; fourth, to the payment of fees then due and payable to the non-Defaulting Lenders hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them; fifth, to pay principal and unreimbursed L/C Disbursements then due and payable to the non-Defaulting Lenders hereunder ratably in accordance with the amounts thereof then due and payable to them; sixth, to the ratable payment of other amounts then due and payable to the non-Defaulting Lenders; and, seventh, after the termination of the Commitments and payment in full of all obligations of the Borrower hereunder, to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct. In the event that the Administrative Agent, the Borrower, the Administrative Agent Issuing Banks and the Revolving Letter of Credit Issuers agree Swingline Lender each agrees in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Administrative Agent will shall so notify the parties hereto, whereupon, whereupon as of the effective date specified in such notice and subject to any conditions set forth thereintherein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.26(e)), such Lender will, to the extent applicable, purchase at par such portion of outstanding Loans of the other Lenders and/or make such other adjustments as the Administrative Agent may determine to be necessary to cause the Revolving Exposure, Revolving L/C Exposure and Swingline Exposure of the Revolving Lenders to be held in accordance with their Pro Rata Percentage in accordance with their respective Commitments, whereupon such Lender will cease to be a Defaulting Lender and will be a Nonnon-Defaulting Lender (and any applicable Cash Collateral shall such Revolving Exposure, Revolving L/C Exposure and Swingline Exposure of each Revolving Lender will automatically be promptly returned adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower and any Revolving Letter of Credit Exposure of while such Lender reallocated pursuant to the requirements of Section 2.16(b) shall be reallocated back to such was a Defaulting Lender; provided thatand provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Nonnon-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s Lender having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (NRG 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Commitment and 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 9.02); provided, that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender except as expressly permitted by the last sentence set forth in Section 9.02(b);
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Applicable Percentages but only to the extent that the sum of all or any portion of the non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within 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 Issuing Bank only the Borrowers’ 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, outstanding or such Person remains a Defaulting Lender;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with Section 2.22(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Company or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Company, the Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and hold such Loans in accordance with its Applicable Percentage. At such time, any applicable Cash Collateral cash collateral provided by the Company in accordance with Section (c)(ii) above shall be promptly returned to the Borrower and any Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderCompany.
Appears in 1 contract
Samples: Credit Agreement (Brown & Brown 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:
(a) : commitment fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a);
(b2.12(a) if any Swingline Exposure or and facility fees shall cease to accrue on the Revolving Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender, then (i) all or any part Commitment of such Defaulting Lender pursuant to Section 2.12(b); the Commitments, Term Loan Exposure and Revolving Letter of Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or Required Facility Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby; if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a Defaulting Lender then: all or any part of the Swingline Exposure and such Swingline LC Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata that are Revolving Lenders in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Percentages but only to the extent that (x) the sum of all or any portion of the such non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments and (y) the conditions set forth in Section 4.02(a) and Section 4.02(b) are satisfied at such time; if the reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, (iii) ; if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be ny-11773361177179 required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(c) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, (iv) cash collateralized; if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(c) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages Percentages; and the Borrower shall not be required to pay if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees payable pursuant to Section 2.12(b) that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(c) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and so long as such Revolving Letter of Credit Exposure is Cash Collateralized and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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-a Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(d) Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non- Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 ny-11773361177179 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 hold such Loans in accordance with its Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderPercentage.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Gramercy Property Trust 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.11(a);
(b) the Commitment and 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 10.02); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of each Lender affected thereby if such amendment, waiver or other modification would affect such Defaulting Lender differently than the other Lenders affected thereby in any material adverse manner;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically term) shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Applicable Percentages but only to the extent that (x) the sum of all or any portion of the non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) 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 so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall shall, without prejudice to any right or remedy available to it hereunder or under law, within two (2) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.05(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, outstanding ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.11(a) and Section 2.11(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender it is reasonably 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 2.19(c), and participating interests in any exposure that would result from the exposure to 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 2.19(c)(i) (and such Defaulting Lender is eliminated or fully covered by shall not participate therein). In the Revolving Credit Commitments of event that the Non-Defaulting Lenders or a combination thereof in accordance with the requirements of Section 2.16(b) above; and
(e) If Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Stewart Information Services 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02 or under any other Loan Document); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Applicable Percentages but only to the extent that (x) the sum of all or any portion of the non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) 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 so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(cSections 2.12(a) and 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Banks or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the applicable Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or such Issuing Bank, as the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion applicable Issuing Banks each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Groupon, 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:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Revolving Commitment, Revolving Credit Exposure and outstanding Term Loans 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 10.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Applicable Percentages but only to the extent that (x) the sum of all or any portion of the non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments and (y) 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 so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 hold such Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (GoPro, 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02); provided, that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Applicable Percentages but only to the extent that the sum of all or any portion of the non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two three (3) Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, upon request of the Administrative Agent, cash collateralize for the benefit of the Issuing Bank only the Borrowers’ 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with Section 2.24(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.24(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Company or such Lender, reasonably satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Company, the Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Tennant 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.12;
(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 9.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Applicable Percentages but only to the extent that (x) the sum of all or any portion of the non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) 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 so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c) 2.12 with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c) 2.12 shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 4.1(c) 2.12 with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) Commitment fees shall will cease to accrue on the unfunded portion of the Commitment of such the Defaulting Lender pursuant to Section 4.1(aSection 3.05(a) and such Defaulting Lender shall not be entitled to receive any commitment fee pursuant to Section 3.05(a);
(b) if If any Swingline Exposure Loans are outstanding or Revolving Letter of Credit any LC Exposure exists at the time a Lender becomes is a Defaulting LenderLender then solely for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, then refinance or fund participations in Swingline Loans and Letters of Credit pursuant to Section 2.08 and Section 2.10:
(i) all or any part of such Revolving Letter of Credit the Swingline Participation Amount and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that Exposures does not exceed the total of all non-Defaulting Lenders’ Commitments, (Ay) each Nonnon-Defaulting Lender’s total Revolving Letter of Credit Exposure plus its Swingline 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 (Bz) neither the conditions set forth in Section 6.02 are satisfied at 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two three Business Days following notice by the Global Administrative Agent given no later than 12:00 noon, Chicago time (x) first, prepay the Swingline Participation Amount of the Defaulting Lender to the Swingline Lender and (y) second, cash collateralize such Swingline Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i(i) above) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 Section 2.08(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(bSection 2.11(b), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(cSection 3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, (iv) cash collateralized; if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)Section 2.11, then the fees payable to the Lenders pursuant to Section 4.1(cSection 3.05(a) and Section 3.05(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Applicable Percentages and with the balance of such fee, if any, being retained by the Borrower shall not be required to pay any fees for its own account or, to the Defaulting Lender pursuant extent any LC Exposure shall then be outstanding, being payable to Section 4.1(c) with respect each applicable Issuing Bank for its own account to the extent such Defaulting Lender’s Revolving Letter fee relates to the amount of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or LC Exposure; or
(viv) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b)Section 2.11, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and Letter of Credit fees payable under Section 4.1(cSection 3.05(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the each applicable Revolving Letter of Credit Issuer Issuing Bank until such Revolving Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;.
(c) no Revolving Letter Notwithstanding any provision of Credit Issuer will be required this Agreement to issue the contrary, so long as any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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-a Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(d) Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit unless the Swingline Lender it is reasonably satisfied that the related 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 2.08(j), and participating interests in any exposure that would result from the exposure 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 2.11(b)(i) (and Defaulting Lenders shall not participate therein).
(d) Any amount payable to such Defaulting Lender is eliminated hereunder (whether on account of principal, interest, fees or fully covered otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 4.01(c) or Section 10.02(c), but excluding Section 5.04(b)) will, in lieu of being distributed to such Defaulting Lender, be retained by the Revolving Credit Commitments Global 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 Global Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Global 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 Lender hereunder, (iii) third, to cash collateralize such Defaulting Lender’s LC Exposure in accordance with Section 2.08(j), (iv) fourth, as the Borrower may request (so long as no Default exists), to the funding of any Loan or Swingline Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Global Administrative Agent, (v) fifth, if so determined by the Global Administrative Agent and the Borrower, held in an interest bearing account and released pro rata in order to (A) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (B) cash collateralize such Defaulting Lender’s future LC Exposure in accordance with Section 2.08(j), (vi) sixth, to the payment of any amounts then owing to the Lenders, any Issuing Bank or the Swingline Lender as a result of any final and non-appealable 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 breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts then owing to the Borrower as a result of any final and non-appealable judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the Nonprincipal amount of any Loans or reimbursement obligations in respect of LC Disbursement or Swingline Participation Amount that a Defaulting Lender has not fully funded its participation obligations and (y) in the case of such Loans which were made at a time when the conditions set forth in Section 6.02 were satisfied or waived, such payment will 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 a combination thereof in accordance with reimbursement obligations owed to, any Defaulting Lender. Any payments, prepayments or other amounts paid or payable to any Defaulting Lender that are applied (or held) to pay amounts owed by such Defaulting Lender or to post cash collateral pursuant to Section 2.11 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents to the requirements of Section 2.16(b) above; andforegoing.
(e) If any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Global Administrative Agent, require such Lender to be replaced in accordance with Section 5.04(b).
(f) In the event that the Global Administrative Agent, the Borrower, the Administrative Agent Issuing Banks and the Revolving Letter of Credit Issuers agree in writing in their discretion Swingline Lender each agrees that a Lender that is a Defaulting Lender should no longer be deemed has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Participation Amounts and LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Defaulting Lender’s Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Global Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage; provided, that no adjustments will so notify the parties hereto, whereupon, as be made retroactively with respect to fees accrued or payments made by or on behalf of the effective date specified in such notice and subject to any conditions set forth therein, Borrower while such Lender will cease to be was a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral shall be promptly returned to the Borrower and any Revolving Letter of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) shall be reallocated back to such Lender; provided thatand 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 that the Borrower, the Global Administrative Agent, the Issuing Banks, the Swingline Lender, or any party hereunder arising from other Lender may have against such Lender’s having been Defaulting Lender or cause such Defaulting Lender to be a non-Defaulting LenderLender except as expressly set forth above.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 amendment, waiver or other modification pursuant to Section 9.02); provided, that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a Revolving Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically term) shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata that are Revolving Lenders in accordance with their respective Revolving Credit Commitment Percentage; provided Applicable Percentages but only to the extent that (A) each Nonsuch reallocation does not, as to any such non-Defaulting Lender, cause the Dollar Amount of such non-Defaulting Lender’s Revolving Letter of Credit Exposure plus to exceed its Swingline 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitment;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower shall within two one (1) Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the applicable 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) and (y) second, Cash Collateralize such Defaulting Lender’s Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders that are Revolving Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Revolving Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any other Revolving Lender hereunder, all letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable ratably to the applicable Revolving Letter of Credit Issuer Issuing Banks until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as any Revolving Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied (acting in good faith) 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 that are Revolving Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.23(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 that are Revolving Lenders in a manner consistent with Section 2.23(c)(i) (and such Defaulting Lender shall not participate therein).
(i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Banks have a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that or the Issuing Banks, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any exposure that would result from the exposure risk to it in respect of such Defaulting Lender is eliminated hereunder or fully covered by the Revolving any obligations of such Lender(s) in question to reimburse any Swingline Loans and/or payments with respect to Letters of Credit Commitments of the Nonshall have been reallocated to non-Defaulting Lenders or a combination thereof in accordance with Section 2.23(c) hereof. In the requirements of Section 2.16(b) above; and
(e) If event that the Administrative Agent, the Borrower, the Administrative Agent Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Banks each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 Revolving Commitment and on such date such Lender shall purchase at par such of the Loans of the applicable Class of the other Lenders (other than Swingline Loans) as the Administrative Agent will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 9.02); provided, that, except as otherwise provided in Section 9.02, this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically term) shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided Applicable Percentages but only to the extent that (A) each Nonsuch reallocation does not, as to any non-Defaulting Lender, cause the Dollar Amount of such non-Defaulting Lender’s Revolving Letter of Credit Exposure plus to exceed its Swingline 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, the Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, Commitment;
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Company shall within two three (3) Business Days following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, upon request of the Administrative Agent, cash collateralize for the benefit of the Issuing Bank only the Borrowers’ 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Company cash collateralizes any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Company in accordance with Section 2.24(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.24(c)(i) (and such Defaulting Lender shall not participate therein).
(i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or the exposure to such Defaulting Lender is eliminated or fully covered by Issuing Bank, as the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Company or such Lender, reasonably satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Company, the Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Bank each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Tennant 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:.
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(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 or waiver pursuant to Section 9.02), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically and LC Exposure shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Commitment Percentage; provided that (A) each Non-Exposures plus such Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline Exposure may and LC Exposure does not in any event exceed the Revolving Credit Commitment total of such Nonall non-Defaulting Lender as in effect at the time of such reallocation Lenders’ Revolving Commitments and (By) neither the conditions set forth in Section 4.02 are satisfied at 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 Revolving Letter of Credit Issuers, the Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender, time; and
(ii) to if the extent that all or any portion of the Defaulting Lender’s Revolving Letter of Credit Exposure and Swingline Exposure reallocation described in clause (i) above cannot, or can only partially, be so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Borrowers shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize 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 Revolving 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 3.8 2.06(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Borrowers cash collateralize any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b2.21(c), the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b2.21(c), then the fees payable to the Lenders pursuant to Section 4.1(c2.12(a) and Section 2.12(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ 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 Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or Applicable Percentages; or
(v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized cash collateralized nor reallocated pursuant to the requirements of this Section 2.16(b2.21(c), then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer Issuing Bank or any Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.12(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer Issuing Bank until such Revolving Letter of Credit LC Exposure is Cash Collateralized cash collateralized and/or reallocated;
(cd) no Revolving Letter of Credit Issuer will be required to issue so long as any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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-a Defaulting Lenders or by Cash Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;
(d) Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender it is reasonably satisfied that any the related exposure that would result from the exposure to such Defaulting Lender is eliminated or fully will be 100% covered by the Revolving Credit Commitments of the Nonnon-Defaulting Lenders or a combination thereof and/or cash collateral will be provided by the Borrowers in accordance with the requirements Section 2.21(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 2.16(b2.21(c)(i) above(and Defaulting Lenders shall not participate therein); and
(e) If any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.18(d) but excluding Section 2.20(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the BorrowerAdministrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Bank or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Revolving Letter Borrower Representative, held in such account as cash collateral for future funding obligations of Credit Issuers agree the Defaulting Lender of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders or an Issuing Bank or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or such Issuing Bank or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in writing in their discretion that a Lender that is respect of LC Disbursements for which a Defaulting Lender should no longer has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.02 are satisfied, such payment shall be deemed applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender.
(f) In the event that the Administrative Agent, the Borrowers, the Issuing Bank and the Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Administrative Agent will so notify the parties hereto, whereupon, as Swingline Exposure and LC Exposure of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable Cash Collateral Lenders shall be promptly returned readjusted to reflect the Borrower and any Revolving Letter inclusion of Credit Exposure of such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderRevolving 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 shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (A. H. Belo 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:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.11(a);.
(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 10.02); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby.
(c) if any Swingline Exposure or Revolving Letter of Credit LC Exposure exists at the time a such Lender becomes a Defaulting Lender, then Lender then:
(i) all or any part of such Revolving Letter of Credit the Swingline Exposure and LC Exposure of such Defaulting Lender and such Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically shall be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Nonnon-Defaulting Lenders pro rata in accordance with their respective Revolving Credit Commitment Percentage; provided that (A) each Non-Defaulting Lender’s Revolving Letter of Credit Exposure plus its Swingline 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, the Revolving Letter of Credit Issuers, 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) Applicable Percentages but only to the extent that (x) the sum of all or any portion of the non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Revolving Letter of Credit Swingline Exposure and Swingline LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) 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 so reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.16(b)(i) above or otherwiseeffected, the Borrower Borrowers shall within two one Business Days Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Banks only the Borrowers’ 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 Revolving 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 3.8 2.05(j) for so long as such Revolving Letter of Credit LC Exposure is outstanding, ;
(iii) if the Borrower Cash Collateralizes Borrowers cash collateralize any portion of such Defaulting Lender’s Revolving Letter of Credit LC Exposure pursuant to the requirements of this Section 2.16(b)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Revolving Letter of Credit LC Exposure is Cash Collateralized, cash collateralized;
(iv) if the Revolving Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.16(b)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(c2.11(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Revolving Credit Commitment Percentages and the Borrower shall not be required to pay Applicable Percentages; and
(v) if all or any fees to the Defaulting Lender pursuant to Section 4.1(c) with respect to portion of such Defaulting Lender’s Revolving Letter of Credit Exposure during the period that such Defaulting Lender’s Revolving Letter of Credit Exposure is reallocated, or (v) if any Defaulting Lender’s Revolving Letter of Credit LC Exposure is neither Cash Collateralized reallocated nor reallocated cash collateralized pursuant to the requirements of this Section 2.16(b)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Revolving Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 4.1(c2.11(b) with respect to such Defaulting Lender’s Revolving Letter of Credit LC Exposure shall be payable to the applicable Revolving Letter of Credit Issuer until Issuing Banks and to the extent that such Revolving Letter of Credit LC Exposure is Cash Collateralized reallocated and/or reallocated;
(c) no Revolving Letter of Credit Issuer will be required to issue any new Revolving Letter of Credit or to amend any outstanding Revolving Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the applicable Revolving Letter of Credit Issuer 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 Collateralization or a combination thereof in accordance with the requirements of Section 2.16(b) above or otherwise in a manner reasonably satisfactory to the applicable Revolving Letter of Credit Issuer;cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender will shall not be required to fund any Swingline Loans Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.21(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 2.21(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is reasonably satisfied that any exposure that would result from or such Issuing Bank, as the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Credit Commitments of the Non-Defaulting Lenders or a combination thereof in accordance case may be, shall have entered into arrangements with the requirements Borrowers or such Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of Section 2.16(b) above; and
(e) If such Lender hereunder. In the Borrowerevent that the Administrative Agent, the Administrative Agent Company, the Swingline Lender and the Revolving Letter of Credit Issuers agree in writing in their discretion Issuing Banks each agrees that a Lender that is a Defaulting Lender should no longer be deemed 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 will so notify the parties hereto, whereupon, as of the effective date specified shall determine may be necessary in such notice and subject to any conditions set forth therein, order for 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 Revolving Letter of Credit Exposure of hold such Lender reallocated pursuant to the requirements of Section 2.16(b) 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 Lender’s having been a Defaulting LenderLoans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: 5 Year Revolving Credit Agreement (Murphy Oil Corp /De)
