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 Available Commitment of such Defaulting Lender pursuant to Section 4.1(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 14.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender; (c) if any Swingline Loan or Letters of Credit Outstanding exists at the time a Lender becomes a Defaulting Lender then: (i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time; (ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (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 such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a) for so long as such Letter of Credit Exposure is outstanding; (iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized; (iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; (v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated; (vi) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and (vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and (d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 3 contracts
Samples: Credit Agreement (Sealy Corp), Credit Agreement (Sealy Corp), Credit Agreement (Sealy Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if including Section 11.2, until a Defaulting Lender cures its failure to fund its Defaulted Advance: (A) with respect to any Lender becomes a payments to be allocated among the Lenders, the Applicable Percentage of the Lenders shall be reallocated by deducting from Defaulting Lender’s Commitment (and the aggregate Commitments) an amount equal to the Defaulted Advance; (B) all payments received by the Administrative Agent from the Borrower in respect of sums owed to any Defaulting Lender, shall be subordinated to the payment in full of all sums then due all other Lenders and Agent; (C) for purposes of voting or consenting to matters with respect to the following provisions Loan Documents and determining Applicable Percentages, such Defaulting Lender shall apply for so long as such Lender is be deemed not to be a Defaulting “Lender:
(a) fees ” and there shall cease to accrue on be excluded from the Available determination of Required Lenders the Revolving Credit Exposure and the Unused Commitment of such Defaulting Lender pursuant to Section 4.1(a);
at such time; (bD) 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 entitled to any amendment or waiver pursuant to Section 14.1), provided that any waiver, amendment or modification requiring portion of the consent Unused Line Fee; (E) the Unused Line Fee shall accrue in favor of all the Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
(c) if any Swingline Loan or Letters of Credit Outstanding exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with have funded their respective Applicable Percentages but only of such requested Borrowing (including, to the extent it has funded a Loan in respect of the Defaulting Lender as provided in Section 1.5(2) above, the Administrative Agent) and shall be allocated among such performing Lenders (xor, as applicable, the Administrative Agent) ratably based upon their respective Commitments (including, as applicable, any Loan made by the sum of all non-Defaulting Lenders’ Credit Exposures plus Administrative Agent as provided in Section 1.5(2) above); and (F) any Defaulted Advance shall not be deducted from such Defaulting Lender’s Swingline Exposure and Letter Commitment for purpose of Credit Exposure does not exceed determining the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (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 such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure Applicable Percentage of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then for purposes of determining the fees payable to ratable indemnification obligations of the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter 10.7. The terms of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required construed to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) shall, in lieu affect the Commitment 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 relieve or excuse the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained performance by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its duties and 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentagehereunder.
Appears in 3 contracts
Samples: Revolving Loan Facility Credit Agreement (Macerich Co), Revolving Loan Facility Credit Agreement (Macerich Co), Revolving Loan Facility Credit Agreement (Macerich 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 shall cease to accrue on the Available unfunded portion of the Revolving Loan Commitment of such Defaulting Lender pursuant to Section 4.1(a2.5(a);
(b) the Revolving Loan Commitment and Outstanding Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Revolving Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 14.18.2), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender affected Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Loan Swing Line Loans shall be outstanding or Letters of Credit Outstanding exists any LC Obligations shall exist at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Company shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) outstanding Swing Line Loans and (y) second, cash collateralize such Defaulting Lender’s 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 5.2(a) 8.1 for so long as such Letter of Credit LC Exposure is outstanding;
(iiiii) if the Borrower Company cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (i) above, the Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 2.19.4 with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;; and
(iviii) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent if any Defaulting Lender’s Letter of Credit LC Exposure is neither not cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) above, then, without prejudice to any rights or remedies of the Letter of Credit LC Issuer or any Lender hereunder, all letter of credit fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) 2.19.4 with respect to such portion of such Letter of Credit Defaulting Lender’s LC Exposure shall instead be payable to the Letter of Credit LC Issuer until such portion of such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized and/or reallocatedcollateralized;
(vid) so long as any Lender is a Defaulting Lender, the Swingline Lender Issuing Bank shall not be required to fund issue or Modify any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of CreditFacility LC, 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 Company in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein2.21(c); and
(viie) 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 14.8(b) 11.2 but excluding Section 14.72.20) 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 Letter of Credit LC Issuer or Swingline Swing Line Lender hereunder, (iii) third, if so determined by to the Administrative Agent funding of any Revolving Loan or requested by a Letter of Credit Issuer the funding or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender collateralization of any participating interest in any Swingline Swing Line Loan or Letter of Credit, (iv) fourth, to the funding of any Loan 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 Administrative Agent, (viv) fifthfourth, if so determined by the Administrative Agent and the BorrowerCompany, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (viv) sixthfifth, pro rata, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer Company or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Borrower Company or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viiivi) eighthsixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided provided, that if such payment is (x) a prepayment of the principal amount of any Revolving Credit Loans or drawings Reimbursement Obligations in respect of Letter of Credits for draws under Facility LCs with respect to which a Defaulting Lender the LC Issuer has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 4.02 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations Reimbursement Obligations owed to, all non-Revolving Lenders that are not Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations Reimbursement Obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 3 contracts
Samples: Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.3 [Commitment Fees];
(bii) the Commitment and Credit Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.111.1 [Modifications, Amendments or Waivers]); provided, provided that any waiverthis clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(ciii) if any Swingline Loan Swing Loans are outstanding or Letters any Letter of Credit Outstanding exists Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of such Swingline Loan the outstanding Swing Loans and Letters Letter of Credit Outstanding Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure Revolving Facility Usage does not exceed the total of all non-Defaulting Lenders’ Commitments ' Revolving Credit Commitments, and (y) the conditions set forth in Section 7 are satisfied no Potential Default or Event of Default has occurred and is continuing at such time;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, cash collateralize for the benefit of the Issuing Lender the Borrower's obligations corresponding to such Defaulting Lender’s Swingline Exposure 's Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with a deposit account held at the procedures set forth in Section 5.2(a) Administrative Agent for so long as such Letter of Credit Exposure is Obligations are outstanding;
(iiic) if the Borrower cash collateralizes any portion of such Defaulting Lender’s 's Letter of Credit Exposure Obligations pursuant to this Section 2.14(c)clause (b) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such cash collateralized portion of such Defaulting Lender’s 's Letter of Credit Exposure Obligations during the period such Defaulting Lender's Letter of Credit Exposure is Obligations are cash collateralized;
(ivd) to the extent if the Letter of Credit Exposure Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (a) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) 2.9.2 [Letter of Credit Fees] shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;' Ratable Share; and
(ve) to the extent if all or any portion of such Defaulting Lender’s 's Letter of Credit Exposure is Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (a) or (b) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees that would have otherwise been Letter of Credit Fees payable to such Defaulting Lender under Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such portion Defaulting Lender's Letter of Credit Obligations shall be payable to the Issuing Lender (and not to such Defaulting Lender) until and to the extent that such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is Obligations are reallocated and/or cash collateralized and/or reallocated;collateralized; and
(viiv) so long as any such Lender is a Defaulting Lender, the Swingline Lender PNC shall not be required to fund any Swingline Loan Swing Loans and the Letter of Credit Issuer Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it the Issuing Lender is satisfied that the related exposure and the Defaulting Lender's then outstanding Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.10(iii), and participating interests in any such newly made Swing Loan or any 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 2.14(c)(i2.10(iii)(a) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 . If (i) first, a Bankruptcy Event with respect to the payment a parent company of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunderevent shall continue, or (ii) secondPNC 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, pro rataPNC shall not be required to fund any Swing Loan and the Issuing Lender shall not be required to issue, to the payment of amend or increase any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthunless PNC or the Issuing Lender, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to PNC or the Issuing Lender, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer PNC and the Swingline Issuing Lender each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lenderthe Administrative Agent will so notify the parties hereto, and the Swingline Exposure Ratable Share of the Swing Loans and Letter of Credit Exposure Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment 's Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentageRatable Share.
Appears in 3 contracts
Samples: Credit Agreement (K12 Inc), Credit Agreement (New Jersey Resources Corp), Revolving Credit Facility (New Jersey Resources Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(a) fees Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall cease to accrue on the Available Commitment of such Defaulting Lender pursuant to be restricted as set forth in Section 4.1(a);12.02.
(b) the Commitment and Credit Exposure of The Administrative Agent shall not be obligated to transfer to such Defaulting Lender shall not be included in determining whether all Lenders or any payments made by the Required Lenders have taken or may take any action hereunder (including any consent Borrower to any amendment or waiver pursuant to Section 14.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects Administrative Agent for such Defaulting Lender differently than Lender’s benefit, and, in the absence of such transfer to such Defaulting Lender, the Administrative Agent shall transfer any such payments to each other applicable non-Defaulting Lender shall require ratably in accordance with their Pro Rata Shares (without giving effect to the consent Pro Rata Shares of such Defaulting Lender;
) (c) if any Swingline Loan or Letters of Credit Outstanding exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus that such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed Loans were funded by the total of all non-Defaulting other Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) or, if the reallocation described in clause (i) above cannot, or can only partially, be effected, so directed by the Borrower shall within one Business Day following notice by and if no Default or Event of Default has occurred and is continuing (and to the Administrative Agent (x) first, prepay extent such Defaulting Lender’s Swingline Exposure (after giving effect Loans were not funded by the other Lenders), retain the same to any partial reallocation pursuant be re-advanced to clause (i) above) and (y) second, cash collateralize the Borrower as if such Defaulting Lender’s Letter of Credit Exposure (after giving effect Lender had made such Loans to any partial reallocation pursuant the Borrower. Subject to clause (i) above) the foregoing, the Administrative Agent may hold and, in accordance with the procedures set forth in Section 5.2(a) for so long as such Letter of Credit Exposure is outstanding;
(iii) if its discretion, re-lend to the Borrower cash collateralizes any portion for the account of such Defaulting Lender’s Letter Lender the amount of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to all such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) payments received and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in for the account of such Defaulting Lender.
(c) Any such failure to fund by any Defaulting Lender shall constitute 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 material breach by such Defaulting Lender to of this Agreement and shall entitle the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of replace the Defaulting Lender of any participating interest in any Swingline Loan with one or Letter of Creditmore substitute Lenders, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Defaulting Lender shall specify an effective date for such replacement, which date shall not be later than 15 Business Days after the date such notice is given. Prior to the effective date of such replacement, the Defaulting Lender shall execute and deliver an Assignment and Acceptance, subject only to the Defaulting Lender being repaid its share of the outstanding Obligations without any premium or penalty of any Revolving Credit Loans under this Agreement, (vi) sixth, kind whatsoever. If the Defaulting Lender shall refuse or fail to execute and deliver any such Assignment and Acceptance prior to the payment effective date of such replacement, the Defaulting Lender shall be deemed to have executed and delivered such Assignment and Acceptance. The replacement of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans made in accordance with its Applicable Percentagethe terms of Section 12.07.
Appears in 3 contracts
Samples: Financing Agreement (AgileThought, Inc.), Financing Agreement (AgileThought, Inc.), Financing Agreement (AgileThought, 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 Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.11;
(b) for purposes of computing the Commitment and amount of the obligation of each Lender that is a non-Defaulting Lender to fund participations in Letters of Credit Exposure pursuant to Section 2.05, the “Applicable Percentage” of such each Lender that is a non-Defaulting Lender shall not be included in determining whether all Lenders computed without giving effect to the Commitment of that Defaulting Lender; provided that, (i) each such reallocation shall be given effect only if, at the date the Lender becomes a Defaulting Lender, no Default or Event of Default exists; and (ii) the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 14.1), provided that any waiver, amendment or modification requiring the consent aggregate obligation of all Lenders or each affected Lender which affects such a non-Defaulting Lender differently than each other applicable to acquire, refinance or fund participations in Letters of Credit shall not exceed the positive difference, if any, of (1) the Letter of Credit Commitment of that non-Defaulting Lender shall require minus (2) the consent aggregate Letter of such Defaulting Credit Obligations of that Lender;
(c) if any Swingline Loan or Letters of Credit Outstanding exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (ib) above cannot, or can only partially, be effected, then the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect Cash Collateralize for the benefit of the Issuer only the Borrowers’ obligations corresponding to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) aboveb)) in accordance with the procedures set forth in Section 5.2(a) 2.05 for so long as such Letter of Credit Exposure is outstandingoutstanding and the relevant Defaulting Lender remains a Defaulting Lender;
(iiii) if the Borrower cash collateralizes Borrowers Cash Collateralize any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(cclause (c), then the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.11(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
Cash Collateralized; (ivii) to the extent if the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(cclause (b), then the fees payable to the Lenders pursuant to Section 4.1(a2.11(a) and Section 4.1(b(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
; or (viii) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized Cash Collateralized nor reallocated pursuant to this Section 2.14(cclause (b) or (c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all commitment fees that otherwise would have otherwise been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such Letter of Credit Exposure) and letter of credit fees payable under Section 4.1(b2.11(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure shall be payable to the applicable Issuer until such Letter of Credit Exposure is cash collateralized Cash Collateralized and/or reallocated;
(vie) so long as any Lender is a the Commitment and Loans of such Defaulting Lender, the Swingline Lender shall not be required included in determining whether all Lenders, the Majority Lenders, the Majority Revolving Lenders, the Supermajority Lenders, or the Supermajority Revolving Lenders have taken or may take any action hereunder (including any consent to fund any Swingline Loan amendment, waiver or other modification pursuant to Section 10.02); provided that (i) such Defaulting Lender’s Commitment may not be increased or extended without its consent and (ii) the Letter principal amount of, or interest or fees payable on, Loans may not be reduced or excused or the scheduled date of Credit payment may not be postponed as to such Defaulting Lender without such Defaulting Lender’s consent; and
(f) no Issuer shall not be required to issue, amend increase, amend, renew, replace, refinance or increase extend any Letter of Credit, Credit unless it is satisfied that the related exposure it 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 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline have no Fronting Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentageafter giving effect thereto.
Appears in 3 contracts
Samples: Credit Agreement (Unit Corp), Credit Agreement (Unit Corp), Credit Agreement (Unit 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 Commitment Fees shall cease to accrue on the Available unused amount of the Revolving Commitment of such Defaulting Lender pursuant to as provided in Section 4.1(a2.09(a);
(b) the Commitment and Credit Exposure of such Defaulting Lender shall not be included in determining whether all the Required Lenders or the Required any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan or Letters of Credit Outstanding LC Exposure exists at the time a Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all that such reallocation does not, as to any non-Defaulting Lenders’ Credit Exposures plus Lender, cause such non-Defaulting Lender’s Swingline Revolving Exposure and Letter of Credit Exposure does not to exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeits Revolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay cash collateralize for the benefit of the Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s Swingline LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a2.19(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.09(c) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if the extent the Letter of Credit LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a2.09(a) and Section 4.1(b2.09(c) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all letter of credit fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.09(c) with respect to such portion of such Letter of Credit Defaulting Lender’s LC Exposure shall instead be payable to the Letter of Credit Issuer Issuing Bank until and to the extent that such portion of such Defaulting Lender’s Letter of Credit LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any a Revolving Lender is a Defaulting Lender, the Swingline Lender no Issuing Bank shall not be required to fund any Swingline Loan and the Letter of Credit Issuer 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 Borrowers Borrower in accordance with Section 2.14(c2.17(c), and participating interests in LC Exposure related to 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 2.14(c)(i2.17(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and.
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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, a Bankruptcy Event or a Bail-In Action with respect to a Revolving Lender shall occur following the payment of any amounts owing by date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) secondany Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Revolving Lender commits to extend credit, pro ratano Issuing Bank shall be required to issue, to the payment of amend or increase any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthunless such Issuing Bank shall have entered into arrangements with the Borrower or such Revolving Lender, satisfactory to the funding of such Issuing Bank to defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that each of the Administrative Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline Lender each agree Issuing Bank agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of 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 3 contracts
Samples: Credit Agreement (MSG Entertainment Spinco, Inc.), Credit Agreement (MSG Entertainment Spinco, Inc.), Credit Agreement (Madison Square Garden 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 Available 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 amendment, waiver or waiver other modification pursuant to Section 14.111.02); provided, provided that any waiverthis clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(c) if any Swingline Loan or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) so long as no Default shall be continuing, all or any part of the LC Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) to the conditions set forth in Section 7 are satisfied at extent the sum of each non-Defaulting Lender’s Revolving Credit Exposure and LC Exposure does not exceed such timenon-Defaulting Lender’s Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay cash collateralize for the benefit of the applicable LC Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in the last paragraph of Section 5.2(a) 8.01 for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.12(b) or the applicable LC Bank pursuant to Section 2.12(b)(x) (solely with respect to any fronting fee), in each case with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if the extent the Letter of Credit LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any LC Bank or any other Lender hereunder, all fees Facility Fees that otherwise would have otherwise been payable to such Defaulting Lender under Section 4.1(b) (solely with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter Commitment that was utilized by such LC Exposure) and letter of Credit credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable LC Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vi) so long as any such Lender is a Defaulting Lender, the Swingline Lender no LC Bank shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that (i) 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 Borrower in accordance with Section 2.14(c2.20(c), and (ii) 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 2.14(c)(i2.20(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 . If (i) first, a Bankruptcy Event with respect to the payment a Parent of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) secondany LC Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, pro ratano LC Bank shall be required to issue, to the payment of amend or increase any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthunless the applicable LC Bank, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the funding of applicable LC Bank to defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline Lender XX Xxxxx each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 3 contracts
Samples: Revolving Credit Agreement (Columbia Pipeline Group, Inc.), Revolving Credit Agreement (Columbia Pipeline Group, Inc.), Revolving Credit Agreement (Columbia Pipeline Partners LP)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.11(a);
(b) the Commitment Commitments and Revolving Credit Exposure Exposures of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.110.02); provided, provided that any waiverthis clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders each Lender or each Lender affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or the Swingline Exposure and LC Exposure of such Defaulting Lender (other than any part portion of such Swingline Loan and Letters of Credit Outstanding Exposure (x) attributable to Swingline Loans made by such Defaulting Lender or (y) with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c)) shall be reallocated among the non-Defaulting Global Tranche Lenders ratably in accordance with their respective Applicable Percentages Global Tranche Commitments, but only to the extent (x) the sum of all that no non-Defaulting Lenders’ Lender’s Global Tranche Revolving Credit Exposures plus Exposure after giving effect to such reallocation would exceed such non-Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeGlobal Tranche Commitment;
(ii) if the reallocation reallocations described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and/or (y) cash collateralize for the benefit of the Issuing Banks only the Borrowers’ obligations corresponding to such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a2.05(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.11(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if the extent the Letter of Credit LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a2.11(a) and Section 4.1(b2.11(b) shall be adjusted in accordance with the amounts of such LC Exposure allocated to the non-Defaulting Lenders’ Applicable Percentages;; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Banks or any other Lender hereunder, all Letter of Credit fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.11(b) with respect to such portion of such Letter of Credit Defaulting Lender’s LC Exposure shall instead be payable to the Letter of Credit Issuer applicable Issuing Banks until and to the extent that such portion of such Defaulting Lender’s Letter of Credit LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer no Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure Swingline Exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Global Tranche Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(c2.21(c), and participating interests in any such newly made Swingline Loan or any newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Global Tranche Lenders of the applicable Tranche in a manner consistent with Section 2.14(c)(i2.21(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 . If (i) first, a Bankruptcy Event or Bail-in Action with respect to the payment a Parent of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunderor 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, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, Lender shall not be required to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in fund any Swingline Loan and such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, (iv) fourthunless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, reasonably satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender and each Issuing Bank agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitments and on such date such Lender shall purchase at par such of the US Tranche Loans and/or Global Tranche Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender the Lenders to hold such Loans in accordance with its Applicable Percentagetheir applicable Tranche Percentages.
Appears in 2 contracts
Samples: Revolving Credit Facility Agreement (Albany International Corp /De/), Revolving Credit Facility Agreement (Albany International 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:
(ai) fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.3 [Commitment Fees];
(bii) the Commitment and Credit Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.112.1 [Modifications, Amendments or Waivers]); provided, provided that any waiverthis clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(ciii) if any Swingline Loan Swing Loans are outstanding or Letters any Letter of Credit Outstanding exists Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of such Swingline Loan the outstanding Swing Loans and Letters Letter of Credit Outstanding Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure Revolving Facility Usage does not exceed the total of all non-Defaulting Lenders’ Commitments Revolving Credit Commitments, and (y) the conditions set forth in Section 7 are satisfied no Potential Default or Event of Default has occurred and is continuing at such time;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, cash collateralize for the benefit of the Issuing Lender the Borrowers’ obligations corresponding to such Defaulting Lender’s Swingline Exposure Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with a deposit account held at the procedures set forth in Section 5.2(a) Administrative Agent for so long as such Letter of Credit Exposure is Obligations are outstanding;
(iiic) if the Borrower Borrowers cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure Obligations pursuant to this Section 2.14(c)clause (b) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 2.8.2 [Letter of Credit Fees] with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure Obligations during the period such Defaulting Lender’s Letter of Credit Exposure is Obligations are cash collateralized;
(ivd) to the extent if the Letter of Credit Exposure Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (a) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) 2.8.2 [Letter of Credit Fees] shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;Ratable Share; and
(ve) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Exposure is Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (a) or (b) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees that would have otherwise been Letter of Credit Fees payable to such Defaulting Lender under Section 4.1(b) 2.8.2 [Letter of Credit Fees] with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is Obligations shall be payable to the Issuing Lender (and not to such Defaulting Lender) until and to the extent that such Letter of Credit Obligations are reallocated and/or cash collateralized and/or reallocated;collateralized; and
(viiv) so long as any such Lender is a Defaulting Lender, the Swingline Lender PNC shall not be required to fund any Swingline Loan Swing Loans and the Letter of Credit Issuer Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it (a) with respect to Letters of Credit, such Issuing Lender is satisfied that the related exposure and the Defaulting Lender’s then outstanding Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(c2.10(iii), and participating (b) with respect to Swing Loans, the amount of requested Swing Loans when allocated to non-Defaulting Lenders plus outstanding Swing Loans will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders. Participating interests in any such newly made Swing Loan or any 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 2.14(c)(i2.10(iii)(a) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 . If (i) first, a Bankruptcy Event with respect to the payment a parent company of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunderevent shall continue, or (ii) secondPNC 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, pro rataPNC shall not be required to fund any Swing Loan and the Issuing Lender shall not be required to issue, to the payment of amend or increase any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthunless PNC or the Issuing Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to PNC or the Issuing Lender, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the BorrowerBorrowers, the Letter of Credit Issuer PNC and the Swingline Issuing Lender each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lenderthe Administrative Agent will so notify the parties hereto, and the Swingline Exposure Ratable Share of the Swing Loans and Letter of Credit Exposure Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentageRatable Share.
Appears in 2 contracts
Samples: Credit Agreement (Foster L B Co), Credit Agreement (Foster L B 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) facility fees shall cease to accrue on the Available unused amount 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 the Required Lenders or the Required any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all so long as no Default or any part Event of Default has occurred and is continuing, the LC Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) that the sum of all nonNon-Defaulting Lenders’ Credit Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total sum of all nonNon-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) firstAgent, prepay cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s Swingline LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 5.2(a2.05(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(b2.11(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period for so long as such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if any portion of the extent the Letter of Credit LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(aSections 2.11(a) and Section 4.1(b2.11(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentages;reallocation; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have otherwise been payable to such Defaulting Lender under Section 4.1(b) (solely with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter Commitment utilized by such LC Exposure) and participation fees payable under Section 2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender no Issuing Bank shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% fully covered by the Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.22(c), and participating interests in any such newly issued issued, amended, reviewed or increased extended Letter of Credit or newly made Swingline Loan shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.14(c)(i2.22(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
. In the event that (viix) a Bankruptcy Event with respect to a Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) any amount payable 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 such Defaulting Lender hereunder (whether on account of principalextend credit, interestno Issuing Bank shall be required to issue, fees amend, renew or otherwise and including extend any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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, unless such Issuing Bank shall have entered into arrangements with the Borrower or such Lender satisfactory to the funding of such Issuing Bank to defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline Lender each Issuing Bank each agree (provided that the Borrower’s agreement shall not be required if an Event of Default has occurred and is continuing) that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Macy's, Inc.), Credit Agreement (Macy's, 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 Available unused portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.10(a);
(b) the Commitment Loans, Letter of Credit Exposures and Credit Exposure unused Commitments 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 14.19.02), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
(c) if any Swingline Loan or Letters Letter of Credit Outstanding Exposure exists at the time a Letter of Credit Lender becomes a Defaulting Lender thenLender:
(i) all no Issuing Lender with respect to each Class of Commitment held by such Defaulting Lender shall be required to issue, amend or increase any part Letter of Credit of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Class, unless any Letter of Credit Exposure does not exceed that would result therefrom is fully covered or eliminated by any combination of the total of all non-Defaulting Lenders’ Commitments and following (yA) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (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 such Defaulting Lender’s Letter of Credit Exposure (after giving effect shall be reallocated, as to any partial reallocation pursuant outstanding and future Letters of Credit, as applicable, to clause the Non-Defaulting Lenders as provided in Section 2.18(d)(i) and (iB) above) the Borrower shall within five Business Days following notice by the Administrative Agent cash collateralize only to the extent the Defaulting Lender is not the Issuing Lender for such Letter of Credit, such Defaulting Lender’s Letter of Credit Exposure in accordance with the procedures set forth in Section 5.2(a2.03(j) for so long as in an amount at least equal to the aggregate amount of the Unreallocated Portion of the obligations (contingent or otherwise) of such Defaulting Lender in respect of such Letter of Credit, in which case the obligations of the Non-Defaulting Lenders in respect of such Letter of Credit Exposure is outstanding;
will, subject to subclause (iiiA) if below, be on a pro rata basis in accordance with the Borrower cash collateralizes any portion Letter of such Credit Commitments of the Non-Defaulting Lenders, and the pro rata payment provisions of Section 2.16 shall be deemed adjusted to reflect this provision; provided, that (A) the sum of each Non-Defaulting Lender’s total Letter of Credit Exposure may not in any event exceed the Letter of Credit Commitments of such Non-Defaulting Lender, and (B) neither any such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto nor any such cash collateralization or reduction will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender, or any other Lender may have against such Defaulting Lender, or cause such Defaulting Lender to this Section 2.14(c), be a Non-Defaulting Lender; and
(ii) the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(b2.10(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;collateralized pursuant to clause (i) above; and
(iviii) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent if any Defaulting Lender’s Letter of Credit Exposure is neither not cash collateralized nor or reallocated pursuant to this Section 2.14(c)clause (i) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender Issuing Lenders hereunder, all participation fees that would have otherwise been payable pursuant to such Defaulting Lender under Section 4.1(b2.10(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure shall be payable to the relevant Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or or reallocated;.
(vid) so long as any if a Letter of Credit Lender is becomes, and during the period it remains, a Defaulting Lender, the Swingline Lender following provisions shall not be required apply with respect to fund the reallocation of any Swingline Loan and the outstanding Letter of Credit Issuer shall not be required to issue, amend or increase any Letter Exposure 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 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 2.18(c)(i):
(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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter Exposure of Credit Issuer 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 each such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by shall be reallocated (effective on the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in day such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, becomes a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 among 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all nonNon-Defaulting Lenders pro rata prior to being applied to in accordance with their respective Letter of Credit Commitments; provided, that (A) the prepayment sum of each Non-Defaulting Lender’s total Letter of Credit Exposure may not in any event exceed the Letter of Credit Commitments of such Non-Defaulting Lender, and (B) neither any such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto nor any such cash collateralization or reduction will constitute a waiver or release of any Revolving Credit Loansclaim the Borrower, the Administrative Agent, the Issuing Lender, or reimbursement obligations owed toany other Lender may have against such Defaulting Lender, any or cause such Defaulting Lender to be a Non-Defaulting Lender; and
(dii) in to the event extent that any portion (the “Unreallocated Portion”) of the Defaulting Lender’s Letter of Credit Exposure cannot be so reallocated, the Borrower will, not later than five Business Days after notice by the Administrative Agent, cash collateralize only to the Borrower, extent the Defaulting Lender is not the Issuing Lender for such Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and ’s Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentagethe procedures set forth in Section 2.03(j), in an amount at least equal to the aggregate amount of the Unreallocated Portion of such Letter of Credit Exposure.
Appears in 2 contracts
Samples: Credit Agreement (NRG Yield, Inc.), Credit Agreement (GenOn 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:
(ai) fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.3 [Commitment Fees];
(bii) the Commitment and Credit Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.111.1 [Modifications, Amendments or Waivers]); provided, provided that any waiverthis clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(ciii) if any Swingline Loan Swing Loans are outstanding or Letters any Letter of Credit Outstanding exists Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of such Swingline Loan the outstanding Swing Loans and Letters Letter of Credit Outstanding Obligations of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Applicable Percentages Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure Revolving Facility Usage does not exceed the total of all nonNon-Defaulting Lenders’ Commitments ' Revolving Credit Commitments, and (y) the conditions set forth in Section 7 are satisfied no Potential Default or Event of Default has occurred and is continuing at such time. 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;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, cash collateralize for the benefit of the Issuing Lender the Borrower's obligations corresponding to such Defaulting Lender’s Swingline Exposure 's Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with a deposit account held at the procedures set forth in Section 5.2(a) Administrative Agent for so long as such Letter of Credit Exposure is Obligations are outstanding;
(iiic) if the Borrower cash collateralizes any portion of such Defaulting Lender’s 's Letter of Credit Exposure Obligations pursuant to this Section 2.14(c)clause (b) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 2.9.1.2 [Letter of Credit Fees] with respect to such cash collateralized portion of such Defaulting Lender’s 's Letter of Credit Exposure Obligations during the period such Defaulting Lender's Letter of Credit Exposure is Obligations are cash collateralized;
(ivd) to the extent if the Letter of Credit Exposure Obligations of the nonNon-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (a) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) 2.9.1.2 shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Applicable Percentages;' Ratable Share; and
(ve) to the extent if all or any portion of such Defaulting Lender’s 's Letter of Credit Exposure is Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (a) or (b) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees that would have otherwise been Letter of Credit Fees payable to such Defaulting Lender under Section 4.1(b) 2.9.1.2 with respect to such portion Defaulting Lender's Letter of Credit Obligations shall be payable to the Issuing Lender (and not to such Defaulting Lender) until and to the extent that such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders Obligations are reallocated and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein)collateralized; and
(viiiv) any amount payable to such Defaulting Lender hereunder (whether on account Any payment of principal, interest, fees or otherwise and including any amount that would otherwise be payable other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to such Article 9 [Events of Default] or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) shall, in lieu 9.2.3 [Right 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, Setoff] shall be applied at such time or times as may be determined by the Administrative Agent (i) as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer any Issuing Lender or Swingline Swing Loan Lender hereunder, (iii) ; third, if as the Borrower may request (so determined by the Administrative Agent long as no Default or requested by a Letter Event of Credit Issuer 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) fourthDefault exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth; fourth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such account as cash collateral for Defaulting Lender's potential future funding obligations of the Defaulting Lender of any Revolving Credit with respect to Loans under this Agreement, (vi) sixth; fifth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer the Issuing Lender or Swingline Swing Loan Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer the Issuing Lender or Swingline Swing Loan Lender against such Defaulting Lender as a result of such Defaulting Lender’s 's breach of its obligations under this Agreement; sixth, (vii) seventhso long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s 's breach of its obligations under this Agreement, ; and (viii) eighthseventh, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is (x) a prepayment payment of the principal amount of any Revolving Credit Loans or drawings Letter of Credit disbursements in respect of Letter of Credits for which a such Defaulting Lender has not fully funded its participation obligations appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 7 are satisfied7.2 [Each Loan or Letter of Credit] were satisfied or waived, such payment shall be applied solely to prepay pay the Revolving Credit Loans of, and reimbursement obligations Letter of Credit disbursements owed to, all nonNon-Defaulting Lenders on a pro rata basis prior to being applied to the prepayment payment of any Revolving Credit LoansLoans of, or reimbursement obligations Letter of Credit disbursements owed to, any such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letter of Credit Obligations and Swing Loans are held by the Lenders pro rata in accordance with the applicable Commitments without giving effect to Section 2.10(iii)(a) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender shall be deemed paid to and redirected by such Defaulting Lender; and, and each Lender irrevocably consents thereto.
(dv) so long as such Lender is a Defaulting Lender, Swing Loan Lender shall not be required to fund any Swing Loans and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless such Issuing Lender is satisfied that the related exposure and the Defaulting Lender's then outstanding Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.10(iii), and participating interests in any newly made Swing Loan or any newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.10(iii)(a) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event with respect to a parent company of any Lender shall occur following the date hereof and for so long as such event shall continue, or (ii) Swing Loan 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, Swing Loan Lender shall not be required to fund any Swing Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless Swing Loan Lender or the Issuing Lender, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to Swing Loan Lender or the Issuing Lender, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Swing Loan Lender and the Swingline Issuing Lender each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lenderthe Administrative Agent will so notify the parties hereto, and the Swingline Exposure Ratable Share of the Swing Loans and Letter of Credit Exposure Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment 's Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentageRatable Share, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender's having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Nacco Industries Inc), Revolving Credit Facility (Nacco 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 Available Commitment of such Such Defaulting Lender pursuant shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 4.1(a10.02(b);
(b) and the Commitment and Credit Exposure of such Defaulting Lender shall not be included in determining whether all the Majority Lenders or the Required Super-Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 14.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;hereunder.
(cb) if any Swingline Loan or Letters of Credit Outstanding exists at the time a Lender becomes If a Defaulting Lender then:
(ior a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) all or any part as a result of such Swingline Loan and Letters the exercise of Credit Outstanding a set-off shall be reallocated among the non-Defaulting Lenders have received a payment in accordance with their respective Applicable Percentages but only to the extent (x) the sum respect of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of its Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth which results in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (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 such Defaulting Lender’s Letter of its Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with being less than its Applicable Percentage of the procedures set forth in Section 5.2(a) for so long as such Letter of Aggregate Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c)Exposure, the Borrower shall not then no payments will be required to pay any fees made to such Defaulting Lender pursuant to Section 4.1(b) with respect to until such cash collateralized portion of time as such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to Lender shall have complied with this Section 2.14(c), then the fees payable 2.15 and all amounts due and owing to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted has been equalized in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) each Lender’s respective pro rata share of the Obligations. Further, if at any time prior to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights acceleration or remedies maturity of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any Lender is a Defaulting LenderLoans, the Swingline Lender Administrative Agent shall not be required to fund receive any Swingline payment in respect of principal of a Loan and the Letter of Credit Issuer shall not be required to issue, amend while one 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 Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and more Defaulting Lenders shall not participate therein); and
(vii) any amount payable be party to such Defaulting Lender hereunder (whether on account of principalthis Agreement, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 shall apply such time or times as may be determined by the Administrative Agent (i) first, payment first to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (iiBorrowing(s) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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 Lender(s) shall have failed to fund its portion thereof pro rata share until such time as required by this Agreement, as determined by the Administrative Agent, such Borrowing(s) are paid in full or each Lender (vincluding each Defaulting Lender) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations is owed its Applicable Percentage of all Loans then outstanding. After acceleration or maturity of the Defaulting Lender of any Revolving Credit Loans under this AgreementLoans, (vi) sixth, subject to the payment first sentence of any amounts owing to the Lendersthis Section 2.15(b), in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender all principal will be paid ratably as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage2.15(b).
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Exco Resources Inc), Term Loan Credit Agreement (Exco Resources 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:
(ai) fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.3 [Commitment Fees];
(bii) the Commitment and Credit Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.111.1 [Modifications, Amendments or Waivers]); provided, provided that any waiverthis clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(ciii) if any Swingline Loan Swing Loans are outstanding or Letters any Letter of Credit Outstanding exists Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of such Swingline Loan the outstanding Swing Loans and Letters Letter of Credit Outstanding Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure Revolving Facility Usage does not exceed the total of all non-Defaulting Lenders’ Commitments ' Revolving Credit Commitments, and (y) the conditions set forth in Section 7 are satisfied no Potential Default or Event of Default has occurred and is continuing at such time;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, cash collateralize for the benefit of the Issuing Lender the Borrower's obligations corresponding to such Defaulting Lender’s Swingline Exposure 's Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with a deposit account held at the procedures set forth in Section 5.2(a) Administrative Agent for so long as such Letter of Credit Exposure is Obligations are outstanding;
(iiic) if the Borrower cash collateralizes any portion of such Defaulting Lender’s 's Letter of Credit Exposure Obligations pursuant to this Section 2.14(c)clause (b) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such cash collateralized portion of such Defaulting Lender’s 's Letter of Credit Exposure Obligations during the period such Defaulting Lender's Letter of Credit Exposure is Obligations are cash collateralized;
(ivd) to the extent if the Letter of Credit Exposure Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (a) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) 2.9.2 [Letter of Credit Fees] shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;' Ratable Share; and
(ve) to the extent if all or any portion of such Defaulting Lender’s 's Letter of Credit Exposure is Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (a) or (b) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees that would have otherwise been Letter of Credit Fees payable to such Defaulting Lender under Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such portion Defaulting Lender's Letter of Credit Obligations shall be payable to the Issuing Lender (and not to such Defaulting Lender) until and to the extent that such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is Obligations are reallocated and/or cash collateralized and/or reallocated;collateralized; and
(viiv) so long as any such Lender is a Defaulting Lender, the Swingline Lender PNC Bank shall not be required to fund any Swingline Loan Swing Loans and the Letter of Credit Issuer Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it the Issuing Lender is satisfied that the related exposure and the Defaulting Lender's then outstanding Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.10(iii), and participating interests in any such newly made Swing Loan or any 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 2.14(c)(i2.10(iii)(a) (and such Defaulting Lenders Lender shall not participate therein); and.
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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, a Bankruptcy Event with respect to the payment a parent company of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunderevent shall continue, or (ii) secondPNC Bank or the Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, pro rataPNC Bank shall not be required to fund any Swing Loan and the Issuing Lender shall not be required to issue, to the payment of amend or increase any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthunless PNC Bank or the Issuing Lender, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to PNC Bank or the Issuing Lender, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer PNC Bank and the Swingline Issuing Lender each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lenderthe Administrative Agent will so notify the parties hereto, and the Swingline Exposure Ratable Share of the Swing Loans and Letter of Credit Exposure Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment 's Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentageRatable Share.
Appears in 2 contracts
Samples: Credit Agreement (Hallador Energy Co), Credit Agreement (Hallador Energy Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.3 [Commitment Fees];
(bii) the Commitment and Credit Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.111.1 [Modifications, Amendments or Waivers]); provided, provided that any waiverthis clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(ciii) if any Swingline Loan Swing Loans are outstanding or Letters any Letter of Credit Outstanding exists Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of such Swingline Loan the outstanding Swing Loans and Letters Letter of Credit Outstanding Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure Revolving Facility Usage does not exceed the total of all non-Defaulting Lenders’ Commitments Revolving Credit Commitments, and (y) the conditions set forth in Section 7 are satisfied no Potential Default or Event of Default has occurred and is continuing at such time;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, Cash Collateralize for the benefit of the Issuing Lender the Borrower’s obligations corresponding to such Defaulting Lender’s Swingline Exposure Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with a deposit account held at the procedures set forth in Section 5.2(a) Administrative Agent for so long as such Letter of Credit Exposure is Obligations are outstanding;
(iiic) if the Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure Obligations pursuant to this Section 2.14(c)clause (b) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure Obligations during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralizedObligations are Cash Collateralized;
(ivd) to the extent if the Letter of Credit Exposure Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (a) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) 2.9.2 [Letter of Credit Fees] shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;Ratable Share; and
(ve) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Exposure is Obligations are neither cash collateralized reallocated nor reallocated Cash Collateralized pursuant to this Section 2.14(c)clause (a) or (b) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees that would have otherwise been Letter of Credit Fees payable to such Defaulting Lender under Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized Obligations shall be payable to the Issuing Lender (and not to such Defaulting Lender) until and to the extent that such Letter of Credit Obligations are reallocated and/or reallocated;Cash Collateralized; and
(viiv) so long as any such Lender is a Defaulting Lender, the Swingline Swing Loan Lender shall not be required to fund any Swingline Loan Swing Loans and the Letter of Credit Issuer Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it such Issuing Lender is satisfied that the related exposure and the Defaulting Lender’s then outstanding Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c)2.10(iii) [Defaulting Lenders], and participating interests in any such newly made Swing Loan or any 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 2.14(c)(i2.10(iii)(a) [Defaulting Lenders] (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 . If (i) first, a Bankruptcy Event with respect to the payment a parent company of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunderevent shall continue, or (ii) secondthe Swing Loan 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, pro ratathe Swing Loan Lender shall not be required to fund any Swing Loan and the Issuing Lender shall not be required to issue, to the payment of amend or increase any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthunless the Swing Loan Lender or the Issuing Lender, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swing Loan Lender or the Issuing Lender, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Swing Loan Lender and the Swingline Issuing Lender each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lenderthe Administrative Agent will so notify the parties hereto, and the Swingline Exposure Ratable Share of the Swing Loans and Letter of Credit Exposure Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentageRatable Share.
Appears in 2 contracts
Samples: Credit Agreement (Meridian Bioscience Inc), Credit Agreement (Meridian Bioscience 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 Available 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 amendment, waiver or waiver other modification pursuant to Section 14.19.02); provided, provided that any waiverthis clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (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 for the benefit of the Issuing Bank only the Borrowers’ obligations corresponding to such Defaulting Lender’s 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 5.2(a2.06(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.12(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if the extent the Letter of Credit LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have otherwise been payable to such Defaulting Lender under Section 4.1(b) (solely with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter Commitment that was utilized by such LC Exposure) and letter of Credit 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/or reallocated;collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer 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 Borrowers Company in accordance with Section 2.14(c2.24(c), and participating interests in any such newly made Swingline Loan or any 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 2.14(c)(i2.24(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 . If (i) first, a Bankruptcy Event with respect to the payment a Parent of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunderor 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, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, Lender shall not be required to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, (iv) fourthunless 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 the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the BorrowerCompany, the Letter of Credit Issuer and the Swingline Lender and the Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Fiserv Inc), Credit Agreement (Fiserv Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement anything contained herein to the contrary, if any Lender becomes a Defaulting Lender, then in the following provisions shall apply for so long as such Lender is case of a Defaulting Lender:
(ai) fees shall cease to accrue on the Available Commitment of such L/C Issuer may require, the Borrower or Defaulting Lender pursuant to Section 4.1(a);
(b) provide Adequate Assurance, which may include cash collateral, for 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 14.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
(c) if any Swingline Loan or Letters of Credit Outstanding exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter share of Credit Exposure does not exceed the total L/C Obligations as a condition to the issuance or extension of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth Letters of Credit, as referenced in Section 7 are satisfied at such time2.03(a)(iii)(E);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effectedSwing Line Lender may require, the Borrower shall within one Business Day following notice by or Defaulting Lender to provide Adequate Assurance, which may include cash collateral, for the Administrative Agent (x) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect risk participation share of Swing Line Loans as a condition to any partial reallocation pursuant to clause (i) above) and (y) secondthe making or extension of Swing Line Loans, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth as referenced in Section 5.2(a) for so long as such Letter of Credit Exposure is outstanding2.04(b);
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to may be replaced as provided in Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized11.14;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account payments of principal, interest, fees or otherwise and including any amount that would otherwise be payable other amounts owing to such a Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) shall, in lieu of being distributed to such Defaulting Lender, will be retained by paid into an account or subaccount with the Administrative Agent for the benefit of the Defaulting Lender (collectively, the “Defaulting Lender Account”) and held to secure the Defaulting Lender’s obligations hereunder. Amounts held in a segregated account and, subject the Defaulting Lender Account will be used first to any applicable requirements of law, be applied at such time or times as may be determined by reimburse the Administrative Agent (i) firstand Collateral Agent for the Defaulting Lender’s share of fees and expenses, 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account second as cash collateral for future funding obligations of the Defaulting Lender Lender’s share of any participating interest in any Swingline Loan or Letter of Creditoutstanding L/C Obligations and Swing Line Loans, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed third 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 Defaulting Lender’s share of Revolving Loan advances and the Borrower, held in such account fourth as cash collateral for future funding obligations the Defaulting Lender’s unfunded share of the Revolving Commitments. Any amounts remaining in the Defaulting Lender Account after payment in full of the Defaulting Lender Lender’s obligations and termination of any Revolving Credit Loans the commitments under this Agreement, (vi) sixth, Agreement and the other Loan Documents will be paid over to the payment of any amounts owing to Defaulting Lender;
(v) the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or Swingline Lender against such Defaulting Lender shall not be entitled to vote or receive a commitment fee, facility fee or letter of credit fee hereunder for so long 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment it shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease except as provided in Section 11.01; and
(vi) subject to be a Defaulting LenderSection 2.14(c), and the Swingline Exposure and Letter of Credit Exposure commitments of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Defaulting Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary reduced or terminated as provided in order for such Lender to hold such Loans in accordance with its Applicable PercentageSection 2.06 on a non-ratable basis.
Appears in 2 contracts
Samples: Credit Agreement (Kraton Performance Polymers, Inc.), Credit Agreement (Kraton Polymers LLC)
Defaulting Lenders. Notwithstanding any provision of this Credit Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) fees Facility Fees shall cease to accrue on the Available Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a3.4(a);
(b) the Revolving Commitment and Credit Revolving Exposure of such Defaulting Lender shall not be included in determining whether all the Required Lenders or the Required any other requisite Lenders have taken or may take any action hereunder or under any other Credit Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.111.6), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 11.6, require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan Swing Line Exposure or Letters of Credit Outstanding LOC Obligation exists at the time a such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part the Swing Line Exposure and LOC Obligations of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Applicable Revolving Loan Commitment Percentages but only to the extent (x) that the sum of all nonNon-Defaulting Lenders’ Credit Revolving Exposures plus such Defaulting Lender’s Swingline Swing Line Exposure and Letter of Credit Exposure LOC Obligations does not exceed the total sum of all nonNon-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeRevolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one Business Day following notice by the Administrative Agent (xA) first, prepay the portion of such Defaulting Lender’s Swingline Swing Line Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated and (yB) second, cash collateralize for the benefit of the Issuing Lenders the portion of such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a) LOC Obligations that has not been reallocated for so long as such Letter LOC Obligations are outstanding by depositing cash in such amount in an account with the Administrative Agent, in the name of Credit Exposure is outstandingthe Administrative Agent and for the benefit of the Lenders;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure LOC Obligations pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees Letter of Credit Fees to such Defaulting Lender pursuant to Section 4.1(b3.4(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period LOC Obligations for so long as such Letter of Credit Exposure is Defaulting Lender’s LOC Obligations are cash collateralized;
(iv) to the extent the Letter of Credit Exposure if any portion of the non-LOC Obligations of such Defaulting Lenders Lender is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(aSections 3.4(a) and Section 4.1(b3.4(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentages;reallocation; and
(v) to the extent any if such Defaulting Lender’s Letter of Credit LOC Obligations or Swing Line Exposure is neither or any portion thereof are not repaid or reallocated or cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Lender or any other Lender hereunder, all fees Facility Fees that otherwise would have otherwise been payable to such Defaulting Lender under Section 4.1(b) (solely with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Commitment utilized by such LOC Obligations and Swing Line Exposure) and Letter of Credit Fees payable under Section 3.4(b) with respect to such Defaulting Lender’s LOC Obligations shall be payable to the relevant Issuing Lender and the Swing Line Lender, as its interests may appear, until and to the extent that such LOC Obligation and Swing Line Exposure is reallocated and/or cash collateralized and/or reallocated;
or repaid. In the event that (vix) any event described in Section 9.1(f) with respect to a Revolving Lender Parent shall have occurred following the Restatement Effective Date and for so long as such Event of Default under Section 9.1(f) shall continue or (y) any Issuing Lender is has a Defaulting Lendergood 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 no Issuing Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, Credit unless it is satisfied that such Issuing Lender shall have entered into arrangements with 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 2.14(c), and participating interests in any Borrower or 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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable Revolving Lender satisfactory 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 14.8(b) but excluding Section 14.7) 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 Issuing Lender to the Administrative Agent hereunder, (ii) second, pro rata, defease any risk to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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 it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Swing Line Lender and the Swingline Lender each Issuing Lenders agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and (i) the Swingline Swing Line Exposure and Letter of Credit Exposure LOC Obligation of the Revolving Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and Revolving Commitment, (ii) on such date such Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Swing Line Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Loans in accordance with its Applicable PercentageRevolving Loan Commitment Percentage and (iii) any and all cash collateral provided by the Borrower in respect of such Defaulting Lender’s Swing Line Exposure or LOC Obligations in accordance with Section 2.6(c)(ii) above shall be immediately released to the Borrower and the Administrative Agent and the Lenders shall promptly execute such documents as may be necessary to give effect to such release.
Appears in 2 contracts
Samples: Credit Agreement (Quest Diagnostics Inc), Credit Agreement (Quest Diagnostics Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement any Loan Document to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the Available unused 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 the Required Lenders or the Required any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender Lender, then:
(i) all or the Swingline Exposure (other than any part portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and, in the case of any Defaulting Lender that is the Swingline Lender, with its Swingline Exposure being determined as if it were not the Swingline Lender) and LC Exposure of such Swingline Loan Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.05(d) and Letters of Credit Outstanding Section 2.05(e)) shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders in accordance with their respective Applicable Percentages (for the purposes of such reallocation, such Defaulting Lender’s Commitment shall be disregarded in determining the Non-Defaulting Lenders’ respective Applicable Percentages), but only to the extent that (xA) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure (other than any portion thereof referred to in the parenthetical clause above) and Letter of Credit LC Exposure (other than any portion thereof referred to in the parenthetical clause above) does not exceed the total sum of all nonNon-Defaulting Lenders’ Commitments and (yB) the conditions set forth in Section 7 are satisfied at after giving effect to any such timereallocation, no Non-Defaulting Lender’s Revolving Credit Exposure shall exceed such Non-Defaulting Lender’s Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one three Business Day Days following the Borrower’s receipt of written notice by from the Administrative Agent Agent, (xA) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) above) that has not been reallocated and (yB) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a2.05(k) for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any letter of credit participation fees to such Defaulting Lender pursuant to Section 4.1(b2.11(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter portion of Credit such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to the extent the Letter if any portion of Credit such Defaulting Lender’s LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a2.11(a) and Section 4.1(b2.11(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentages;reallocation; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all Letter of Credit participation fees that otherwise would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.11(b) with respect to such portion of such Letter of Credit Defaulting Lender’s unreallocated LC Exposure shall instead be payable to the Letter of Credit Issuer until such Issuing Banks, ratably based on the portion of such Defaulting Lender’s Letter LC Exposure attributable to Letters of Credit issued by each Issuing Bank, until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;pursuant to clause (i) or (ii) above; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer no Issuing Bank shall not be required to issue, amend or increase extend any Letter of Credit, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be 100% covered by the Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.20(c), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan or any newly issued, amended or extended Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.14(c)(i2.20(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount . In the event that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject Bankruptcy Event with respect to any applicable requirements of lawLender Parent shall have occurred following the Closing Date and for so long as such Bankruptcy Event shall continue, no Issuing Bank shall be applied at such time required to issue, amend, extend or times as may be determined by the Administrative Agent (i) first, to the payment of increase 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthand the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender shall have entered into arrangements with the Borrower or the applicable Lender reasonably satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender and each agree Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure Exposures and Letter of Credit Exposure LC Exposures of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitment, and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its Applicable Percentage, and such Lender shall thereupon cease to be a Defaulting Lender (but shall not be entitled to receive any commitment fees accrued during the period when it was a Defaulting Lender, and all amendments, waivers or modifications effected without its consent in accordance with the provisions of Section 9.02 and this Section during such period shall be binding on it). The rights and remedies against, and with respect to, a Defaulting Lender under this Section 2.20 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Lender, each Issuing Bank, the Swingline Lender, the Borrower or any other Loan Party may at any time have against, or with respect to, such Defaulting Lender.
Appears in 2 contracts
Samples: Revolving Credit Agreement (MPLX Lp), Revolving Credit Agreement (Marathon Petroleum 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 Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.5(a);
(b) the Commitment and Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.110.1), ; provided that any waiverthis clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding L/C Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and L/C Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Revolving Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Extensions of Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one two Business Day Days 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 for the benefit of the Issuing Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s Letter of Credit L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a) 8 for so long as such Letter of Credit L/C Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit L/C Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b3.3(a) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit L/C Exposure during the period such Letter of Credit Defaulting Lender’s L/C Exposure is cash collateralized;
(iv) to if the extent the Letter of Credit L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a2.5(a) and Section 4.1(b3.3(a) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Revolving Percentages;; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit L/C Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b3.3(a) with respect to such portion of such Letter of Credit Defaulting Lender’s L/C Exposure shall instead be payable to the Letter of Credit Issuer Issuing Lender until and to the extent that such portion of such Defaulting Lender’s Letter of Credit L/C Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer 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 Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in the amount of such Defaulting Lender’s L/C Exposure in accordance with Section 2.14(c2.19(c), and participating interests in any such newly made Swingline Loan or any 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 2.14(c)(i2.19(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Air Lease Corp), Credit Agreement (Air Lease Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the Available unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.13(a);
(b) the Revolving Commitment and Credit Revolving Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders, the Supermajority Lenders, a Majority in Interest of any Class or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan Exposure, LC Exposure or Letters of Credit Outstanding Protective Advance exists at the time a such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part the Swingline Exposure of such Swingline Loan Defaulting Lender (other than any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c)), the LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.06(d) and Letters 2.06(f)) and such Defaulting Lender’s Applicable Percentage of Credit Outstanding the outstanding Protective Advances shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) that the sum of all nonNon-Defaulting Lenders’ Credit Revolving Total Exposures plus after giving effect to such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does reallocation would not exceed the total sum of all nonNon-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeRevolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (xA) first, prepay the portion of such Defaulting Lender’s Applicable Percentage of any Protective Advances that may be outstanding that has not been reallocated, (B) second, prepay the portion of such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated and (yC) secondthird, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s Letter of Credit 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 5.2(a2.06(i) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the a Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(b2.13(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period for so long as such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if any portion of the extent the Letter of Credit LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.13(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentages;reallocation; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all participation fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.13(b) with respect to such portion of such Letter of Credit Defaulting Lender’s LC Exposure shall instead be payable to the Letter of Credit Issuer until such portion Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s Letter LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer no Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be 100% fully covered by the Revolving Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Company in accordance with Section 2.14(c2.21(c), and participating interests in any such newly issued funded Swingline Loan or increased in any such issued, amended, renewed or extended Letter of Credit or newly made Swingline Loan shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.14(c)(i2.21(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
. In the event that (viix) any amount payable a Bankruptcy Event with respect to a Revolving Lender Parent shall have occurred following July 26, 2013, and for so long as such Defaulting Lender hereunder Bankruptcy Event shall continue or (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 14.8(by) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunderor any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, Lender shall not be required to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in fund any Swingline Loan Loan, and such Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, (iv) fourthunless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with Xxxxxx USA and the applicable Borrower or the applicable Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the BorrowerXxxxxx USA, the Letter of Credit Issuer and Company, the Swingline Lender and each Issuing Bank each agree (such agreement not to be unreasonably withheld or delayed) that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lenderthe Swingline Exposure, the LC Exposure and the Swingline Exposure and Letter of Credit Exposure participations in the Protective Advances 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 shall determine may be necessary in order for such Revolving Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Murphy USA Inc.), Credit Agreement (Murphy USA 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 Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.10(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 amendment, waiver or waiver other modification pursuant to Section 14.19.02); provided, provided that any waiverthis clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(c) if any Swingline Loan or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and Commitments; (y) the conditions set forth in Section 7 4.02 are satisfied at such time;; and (z) the sum of each non-Defaulting Lender’s Revolving Credit Exposure plus its reallocated share of such Defaulting Lender’s LC Exposure does not exceed such non-Defaulting Lender’s Commitment; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay cash collateralize for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a2.04(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c2.18(c)(ii), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.10(b)(i) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if the extent the Letter of Credit LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c2.18(c)(i), then the fees payable to the Lenders pursuant to Section 4.1(a2.10(a) and Section 4.1(b2.10(b)(i) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)2.18(c)(i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any Lender hereunder, all facility fees that otherwise would have otherwise been payable to such Defaulting Lender under Section 4.1(b) (solely with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter Commitment that was utilized by such LC Exposure) and letter of Credit credit fees payable under Section 2.10(b)(i) 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/or reallocated;collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer 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 Borrowers Borrower in accordance with Section 2.14(c2.18(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 2.14(c)(i2.18(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 . If (i) first, a Bankruptcy Event with respect to a Lender Parent shall occur following the payment of any amounts owing by date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) secondthe 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, pro ratathe Issuing Bank shall not be required to issue, to the payment of amend or increase any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthunless the Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the funding of Issuing Bank to defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline Lender Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: 364 Day Revolving Credit Agreement (NuStar GP Holdings, LLC), 364 Day Revolving Credit Agreement (NuStar GP Holdings, LLC)
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) facility fees shall cease to accrue on the Available amount of the US Dollar Tranche Revolving Commitment and Multicurrency Tranche Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.13;
(b) the Commitment Revolving Commitment, Competitive Loan Exposure and Credit Revolving Exposure of such Defaulting Lender shall not be included in determining whether all the Required Lenders or the Required any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding LC Exposure exists at the time a such Revolving Lender becomes a Defaulting Lender then:
(i) all or the Swingline Exposure and LC Exposure of such Defaulting Lender (other than (A) any part portion of such Swingline Loan Exposure (1) referred to in clause (b) of the definition of such term or (2) with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.05(c) and Letters (B) any portion of Credit Outstanding such LC Exposure attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.06(d) and 2.06(e)) shall be reallocated among the nonNon-Defaulting Lenders that are US Dollar Tranche Revolving Lenders in accordance with their respective Applicable Percentages Percentages, but only to the extent (x) that following such reallocation the US Dollar Tranche Revolving Exposure of any such Non-Defaulting Lender does not exceed such Non-Defaulting Lender’s US Dollar Tranche Revolving Commitment and the sum of all nonNon-Defaulting Lenders’ Credit US Dollar Tranche Revolving Exposures plus the amount of such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure so reallocated does not exceed the total sum of all nonNon-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeUS Dollar Tranche Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (xA) first, prepay the portion of such Defaulting Lender’s Swingline Exposure (after giving effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) above) that has not been reallocated and (yB) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s Letter of Credit LC Exposure (after giving effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) above) that has not been reallocated in accordance with the procedures set forth in Section 5.2(a2.06(l) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(b2.13(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period for so long as such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if any portion of the extent the Letter of Credit LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.13(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentages;reallocation; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have otherwise been payable to such Defaulting Lender under Section 4.1(b) (solely with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter US Dollar Tranche Revolving Commitment utilized by such LC Exposure) and participation fees payable under Section 2.13(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Revolving Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable (other than any portion thereof referred to in the parenthetical in clause (i) above), will be fully covered by the US Dollar Tranche Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.21(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.21(c)(i) (and such Defaulting Lender shall not participate therein).
(e) In the event that (i) a Bankruptcy Event with respect to a Lender Parent of any US Dollar Tranche Revolving Lender shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (ii) any Swingline Lender or any Issuing Bank has a good faith belief that any US Dollar Tranche 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 Loan, and the Letter of Credit Issuer such Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless it is satisfied that such Swingline Lender or such Issuing Bank, as the related exposure will be 100% covered by case may be, shall have entered into arrangements with the Commitments of Borrower or the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable applicable US Dollar Tranche Revolving Lender satisfactory to such Defaulting Swingline Lender hereunder (whether on account of principalor such Issuing Bank, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) shall, in lieu of being distributed to such Defaulting Lender, be retained by as the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as case may be determined by the Administrative Agent (i) firstbe, to the payment of defease any amounts owing by such Defaulting Lender risk to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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 it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; andhereunder.
(df) in In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the each Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the US Dollar Tranche Revolving Lenders shall be readjusted to reflect the inclusion of such Lender’s US Dollar Tranche Revolving Commitment (if any) and on such date such Lender shall purchase at par such of the Revolving Loans of each Class of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its relevant Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Broadridge Financial Solutions, Inc.), Credit Agreement (Broadridge Financial Solutions, Inc.)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees The Non-Usage Fee shall cease to accrue on the Available Commitment of such Defaulting Lender pursuant to Section 4.1(a);2.5; and
(bii) the Commitment and Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders Majority Lenders, as applicable, have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 14.110.2), ; provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender affected Lenders shall require the consent of such Defaulting Lender;.
(cb) if any Swingline Loan or Letters of Credit Outstanding exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, If the Borrower shall within one Business Day following notice by and 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 such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) agree in accordance with the procedures set forth in Section 5.2(a) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees writing that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any a Lender is no longer a Defaulting Lender, the Swingline Lender Administrative Agent shall not be required to fund any Swingline Loan and so notify the Letter of Credit Issuer shall not be required to issueparties hereto, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments whereupon as of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers effective date specified in accordance with Section 2.14(c), such notice 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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfiedtherein, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit 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 Advances 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 Advances in accordance with its Applicable Percentage, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Caliber Home Loans, Inc.), Credit Agreement (Home Point Capital 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 Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.11;
(b) for purposes of computing the Commitment and amount of the obligation of each Lender that is a non-Defaulting Lender to fund participations in Letters of Credit Exposure pursuant to Section 2.05, the “Applicable Percentage” of such each Lender that is a non-Defaulting Lender shall not be included in determining whether all Lenders computed without giving effect to the Commitment of that Defaulting Lender; provided that, (i) each such reallocation shall be given effect only if, at the date the Lender becomes a Defaulting Lender, no Default or Event of Default exists; and (ii) the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 14.1), provided that any waiver, amendment or modification requiring the consent aggregate obligation of all Lenders or each affected Lender which affects such a non-Defaulting Lender differently than each other applicable to acquire, refinance or fund participations in Letters of Credit shall not exceed the positive difference, if any, of (1) the Letter of Credit Commitment of that non-Defaulting Lender shall require minus (2) the consent aggregate Letter of such Defaulting Credit Obligations of that Lender;
(c) if any Swingline Loan or Letters of Credit Outstanding exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (ib) above cannot, or can only partially, be effected, then the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect Cash Collateralize for the benefit of the Issuer only the Borrowers’ obligations corresponding to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) aboveb)) in accordance with the procedures set forth in Section 5.2(a) 2.05 for so long as such Letter of Credit Exposure is outstandingoutstanding and the relevant Defaulting Lender remains a Defaulting Lender;
(iiii) if the Borrower cash collateralizes Borrowers Cash Collateralize any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(cclause (c), then the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.11(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
Cash Collateralized; (ivii) to the extent if the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(cclause (b), then the fees payable to the Lenders pursuant to Section 4.1(a2.11(a) and Section 4.1(b(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
; or (viii) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized Cash Collateralized nor reallocated pursuant to this Section 2.14(cclause (b) or (c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all commitment fees that otherwise would have otherwise been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such Letter of Credit Exposure) and letter of credit fees payable under Section 4.1(b2.11(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure shall be payable to the applicable Issuer until such Letter of Credit Exposure is cash collateralized Cash Collateralized and/or reallocated;
(vie) so long as any Lender is a the Commitment and Loans of such Defaulting Lender, the Swingline Lender shall not be required included in determining whether all Lenders, the Majority Lenders, the Majority Revolving Lenders, the Majority Term Lenders, the Supermajority Lenders, or the Supermajority Revolving Lenders have taken or may take any action hereunder (including any consent to fund any Swingline Loan amendment, waiver or other modification pursuant to Section 10.02); provided that (i) such Defaulting Lender’s Commitment may not be increased or extended without its consent and (ii) the Letter principal amount of, or interest or fees payable on, Loans may not be reduced or excused or the scheduled date of Credit payment may not be postponed as to such Defaulting Lender without such Defaulting Lender’s consent; and
(f) no Issuer shall not be required to issue, amend increase, amend, renew, replace, refinance or increase extend any Letter of Credit, Credit unless it is satisfied that the related exposure it 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 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline have no Fronting Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentageafter giving effect thereto.
Appears in 2 contracts
Samples: Credit Agreement (Unit Corp), Credit Agreement (Unit Corp)
Defaulting Lenders. 13.16.1 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) 13.16.1.1 the standby fees payable pursuant to Section 6.5 shall cease to accrue on the Available unused portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)Lender;
(b) the Commitment and Credit Exposure of 13.16.1.2 such Defaulting Lender shall not be included in determining whether whether, and the Commitment and the Rateable Portion of the aggregate principal amount of such Defaulting Lender under the Credit Facilities shall not be included in determining whether, all Lenders or the Required Lenders Lenders, have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 14.113.9), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which that affects such Defaulting Lender differently than each other applicable Lender Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Loan or Letters of Credit Outstanding exists at 13.16.1.3 the time a Lender becomes a Administrative Agent may require such Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to pay to the extent (x) Administrative Agent for deposit into an escrow account maintained by and in the sum name of all non-Defaulting Lenders’ Credit Exposures plus the Administrative Agent an amount equal to such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect maximum contingent obligations hereunder to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of Issuing Lender; and
13.16.1.4 the Defaulting Lender of Administrative Agent may withhold any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts payments owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or Swingline Lender against such Defaulting Lender as a result of for set-off against such Defaulting Lender’s breach existing or reasonably foreseeable future obligations hereunder. For the avoidance of its obligations under this Agreementdoubt, (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 shall retain and reserve its other rights and remedies under Applicable Law respecting each 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Mohegan Tribal Gaming Authority), Credit Agreement (Mohegan Tribal Gaming Authority)
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 Available unused amount of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.8(a);.
(b) the Commitment and Credit Revolving Exposure of such Defaulting Lender shall not be included in determining whether all the Required Lenders or the Required any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.1), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 9.1, require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Exposure of such Swingline Loan Defaulting Lender (other than any portion of such LC Exposure attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.3(e) and Letters of Credit Outstanding 2.3(f)) shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares, but only to the extent (x) that the sum of all nonNon-Defaulting Lenders’ Credit Revolving Exposures plus such Defaulting Lender’s Swingline LC Exposure and Letter of Credit Exposure does would not exceed the total sum of all nonNon-Defaulting Lenders’ Commitments and Commitments; provided that no reallocation under this clause (yi) the conditions set forth in Section 7 are satisfied at shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Xxxxxx having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such timeNon-Defaulting Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s Swingline LC Exposure (after giving effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 5.2(a2.3(i) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(b2.8(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period for so long as such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if any portion of the extent the Letter of Credit LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a2.8(a) and Section 4.1(b2.8(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentages;reallocation; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all participation fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.8(b) with respect to such portion of such Letter of Credit Defaulting Lender’s LC Exposure shall instead be payable to the Letter of Credit Issuer until such portion Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s Letter LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender no Issuing Bank shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% fully covered by the Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.20(c), and participating interests in any such newly issued issued, amended, renewed or increased extended Letter of Credit or newly made Swingline Loan shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.14(c)(i2.20(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount . In the event that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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, a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent shall have occurred following the payment of any amounts owing by date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) secondany 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, pro ratasuch Issuing Bank shall not be required to issue, to the payment of amend, renew or extend any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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, unless such Issuing Bank shall have entered into arrangements with the Borrower or the applicable Lender satisfactory to the funding of such Issuing Bank to defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline Lender each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such LenderXxxxxx’s Commitment and on such date such Lender shall purchase at par such of the 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 PercentagePro Rata Share; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender; provided further that, except as otherwise expressly agreed by the affected parties, no change hereunder from a Defaulting Lender to a Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Xxxxxx’s having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (FTAI Aviation Ltd.), Credit Agreement (Fortress Transportation & Infrastructure Investors 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 Available Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Commitment and Revolving Credit Exposure (including Competitive Loans) of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.110.02); provided, that, except as otherwise provided that any waiverin Section 10.02, amendment this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(c) if any Swingline Loan or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures (including outstanding Competitive Loans) plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay cash collateralize for the benefit of the applicable Issuing Banks only the Borrowers’ obligations corresponding to such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a2.06(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.12(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if the extent the Letter of Credit LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any Lender hereunder, all facility fees that otherwise would have otherwise been payable to such Defaulting Lender under Section 4.1(b) (solely with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter Commitment that was utilized by such LC Exposure) and letter of Credit credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable ratably to the applicable Issuing Banks until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender no Issuing Bank shall not be required to fund any Swingline Loan and the Letter of Credit Issuer 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 Borrowers Company in accordance with Section 2.14(c2.22(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 2.14(c)(i2.22(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 . If (i) first, a Bankruptcy Event or a Bail-In Action with respect to the payment a Parent of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) secondthe 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, pro ratano Issuing Bank shall be required to issue, to the payment of amend or increase any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthunless such Issuing Bank shall have entered into arrangements with the Company or such Lender, satisfactory to such Issuing Bank, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Company and the Swingline Lender each agree Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Competitive 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 2 contracts
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 Available Revolving Credit Commitment of such Defaulting Lender pursuant to Section 4.1(a2.04(a);
(b) the Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Majority Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.18.01); provided, that, except as otherwise provided that any waiverin Section 8.01, amendment this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(c) if any Swingline Loan or Letters Letter of Credit Outstanding Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters the Letter of Credit Outstanding Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Ratable Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeRevolving Credit Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize for the benefit of the relevant Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a) 6.02 for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.04(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) to the extent if the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.04(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;Ratable Shares; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have otherwise 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 Letter of Credit Exposure) and letter of credit fees payable under Section 4.1(b2.04(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure shall be payable to the relevant Issuing Bank until and to the extent that such Letter of Credit Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer 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 Letter of Credit Exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.20(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 2.14(c)(i2.20(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 . If (i) first, a Bankruptcy Event with respect to the payment a Parent of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) secondthe 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, pro ratathe Issuing Banks shall not be required to issue, to the payment of amend or increase any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthunless the Issuing Banks shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Issuing Banks, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline Lender Issuing Banks each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit 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 Advances 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 Advances in accordance with its Applicable PercentageRatable Share.
Appears in 2 contracts
Samples: Credit Agreement (Coca Cola Bottling Co Consolidated /De/), Credit Agreement (Coca Cola Bottling Co Consolidated /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:
(ai) fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.3 [Commitment Fees];
(bii) the Commitment and Credit Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.112.1 [Modifications, Amendments or Waivers]); provided, provided that any waiverthis clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(ciii) if any Swingline Loan Swing Loans are outstanding or Letters any Letter of Credit Outstanding exists Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of such Swingline Loan the outstanding Swing Loans and Letters Letter of Credit Outstanding Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure Revolving Facility Usage does not exceed the total of all non-Defaulting Lenders’ Commitments ' Revolving Credit Commitments, and (y) the conditions set forth in Section 7 are satisfied no Potential Default or Event of Default has occurred and is continuing at such time;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, cash collateralize for the benefit of the Issuing Lender the Borrowers' obligations corresponding to such Defaulting Lender’s Swingline Exposure 's Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with a deposit account held at the procedures set forth in Section 5.2(a) Administrative Agent for so long as such Letter of Credit Exposure is Obligations are outstanding;
(iiic) if the Borrower Borrowers cash collateralizes any portion of such Defaulting Lender’s 's Letter of Credit Exposure Obligations pursuant to this Section 2.14(c)clause (b) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 2.8.2 [Letter of Credit Fees] with respect to such cash collateralized portion of such Defaulting Lender’s 's Letter of Credit Exposure Obligations during the period such Defaulting Lender's Letter of Credit Exposure is Obligations are cash collateralized;
(ivd) to the extent if the Letter of Credit Exposure Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (a) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) 2.8.2 [Letter of Credit Fees] shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;' Ratable Share; and
(ve) to the extent if all or any portion of such Defaulting Lender’s 's Letter of Credit Exposure is Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (a) or (b) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees that would have otherwise been Letter of Credit Fees payable to such Defaulting Lender under Section 4.1(b) 2.8.2 [Letter of Credit Fees] with respect to such portion Defaulting Lender's Letter of Credit Obligations shall be payable to the Issuing Lender (and not to such Defaulting Lender) until and to the extent that such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is Obligations are reallocated and/or cash collateralized and/or reallocated;collateralized; and
(viiv) so long as any such Lender is a Defaulting Lender, the Swingline Lender PNC shall not be required to fund any Swingline Loan Swing Loans and the Letter of Credit Issuer Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it (a) with respect to Letters of Credit, such Issuing Lender is satisfied that the related exposure and the Defaulting Lender's then outstanding Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(c2.10(iii), and participating (b) with respect to Swing Loans, the amount of requested Swing Loans when allocated to non-Defaulting Lenders plus outstanding Swing Loans will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders. Participating interests in any such newly made Swing Loan or any 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 2.14(c)(i2.10(iii)(a) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 . If (i) first, a Bankruptcy Event with respect to the payment a parent company of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunderevent shall continue, or (ii) secondPNC 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, pro rataPNC shall not be required to fund any Swing Loan and the Issuing Lender shall not be required to issue, to the payment of amend or increase any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthunless PNC or the Issuing Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to PNC or the Issuing Lender, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the BorrowerBorrowers, the Letter of Credit Issuer PNC and the Swingline Issuing Lender each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lenderthe Administrative Agent will so notify the parties hereto, and the Swingline Exposure Ratable Share of the Swing Loans and Letter of Credit Exposure Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment 's Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentageRatable Share.
Appears in 2 contracts
Samples: Credit Agreement (Foster L B Co), Credit Agreement (Foster L B 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 Available unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 4.1(a2.9(a);
(b) the Revolving Credit Commitment and Revolving Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.110.1); provided, provided that any waiverthis clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(c) if any Swingline Loan or Letters of Credit Outstanding exists L/C Obligations exist at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part L/C Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Revolving Credit Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Extensions of Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeRevolving Credit Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay Cash Collateralize for the benefit of the Issuing Lender only the Borrower’s obligations corresponding to such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a) Article VIII for so long as such Letter of Credit L/C Exposure is outstanding;
(iii) if the Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit L/C Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b3.3(a) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit L/C Exposure during the period such Letter of Credit Defaulting Lender’s L/C Exposure is cash collateralizedCash Collateralized;
(iv) to if the extent the Letter of Credit L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b3.3(a) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Revolving Credit Percentages;; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit L/C Exposure is neither cash collateralized reallocated nor reallocated Cash Collateralized pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b3.3(a) with respect to such portion of such Letter of Credit Defaulting Lender’s L/C Exposure shall instead be payable to the Letter of Credit Issuer Issuing Lender until and to the extent that such portion of such Defaulting Lender’s Letter of Credit L/C Exposure is cash collateralized reallocated and/or reallocated;Cash Collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Issuing Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer 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 Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(c)Lenders, 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 2.14(c)(i2.27(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in . In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline Issuing Lender each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit L/C Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Revolving Credit Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Forrester Research, Inc.), Credit Agreement (Forrester Research, 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 Available Commitment of such Defaulting Lender pursuant shall be entitled to Section 4.1(a)receive a Facility Fee for any period during which such Lender is a Defaulting Lender only to extent allocable to the sum of (i) the outstanding principal amount of the Revolving Loans funded by such Lender, and (ii) its L/C Exposure for which it has provided cash collateral;
(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 amendment, waiver or waiver other modification pursuant to Section 14.110.08); provided, provided that any waiverthis clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(c) if any Swingline Loan or Letters of Credit Outstanding L/C Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the L/C Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Revolving Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures Exposure plus such Defaulting Lender’s Swingline Exposure and Letter of Credit L/C Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at any Lender’s Revolving Credit Exposure after giving effect to such timereallocation does not exceed such Lender’s Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) firstAgent, prepay cash collateralize for the benefit of the Issuing Lenders only the Borrower’s obligations corresponding to such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a) Article VIII for so long as such Letter of Credit L/C Exposure is outstanding; provided that the amount so cash collateralized (or the appropriate portion thereof) shall no longer be required to be held as cash collateral, and shall be released to the Borrower, following (A) the elimination of such Defaulting Lender’s L/C Exposure with respect to the Letters of Credit or (B) the determination by the Administrative Agent and each Issuing Lender that there exists excess cash collateral;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender shall be entitled to receive fees pursuant to Section 4.1(b3.03(a) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit L/C Exposure during the period such Letter of Credit Lender is a Defaulting Lender only to extent allocable to its L/C Exposure is for which cash collateralizedcollateral has been provided by the Defaulting Lender;
(iv) to if the extent the Letter of Credit L/C Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b3.03(a) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Revolving Percentages;; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit L/C Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lenders or any other Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b3.03(a) with respect to such portion of such Letter of Credit Defaulting Lender’s L/C Exposure shall instead be payable to the Letter of Credit Issuer applicable Issuing Lender until and to the extent that such portion of such Defaulting Lender’s Letter of Credit L/C Exposure is reallocated and/or cash collateralized and/or reallocatedcollateralized;
(vid) so long as any such Lender is a Defaulting Lender, the Swingline no Issuing Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer 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 Commitments of reallocated to the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(c)Borrower or such Defaulting Lender, 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 2.14(c)(i10.19(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and.
(viie) 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) any amount payable 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, no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless such Issuing Lender shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Defaulting Issuing Lender to defease any risk to it in respect of such Lender hereunder arising from the Letter of Credit then proposed to be issued or such Letter of Credit and all other L/C Obligations as to which such Issuing Lender has actual or potential exposure;
(whether on account f) any payment of principal, interest, fees or otherwise and including any amount that would otherwise be payable other amounts received by the Administrative Agent hereunder for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to such Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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, 10.06 shall be applied at such time or times as may be determined by the Administrative Agent (i) as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline any Issuing Lender hereunder, (iii) ; third, if to cash collateralize the Issuing Lenders’ fronting exposure with respect to such Defaulting Lender; fourth, as the Borrower may request (so determined by the Administrative Agent long as no Default or requested by a Letter Event of Credit Issuer 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) fourthDefault exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) ; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (i) satisfy such account as cash collateral for Defaulting Lender’s potential future funding obligations of the Defaulting Lender of any Revolving Credit with respect to Loans under this Agreement and (ii) cash collateralize the Issuing Lenders’ future fronting exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, (vi) ; sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer Lenders or Swingline Lender the Issuing Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer Lender or Swingline Lender the Issuing Lenders against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, (vii) seventhso long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, ; and (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 payment of the principal amount of any Revolving Credit Loans or drawings participations in Letters of Credit in respect of Letter of Credits for which a such Defaulting Lender has not fully funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfiedappropriate share, such payment shall be applied solely to prepay pay the Revolving Credit Loans of, and reimbursement obligations L/C Obligations owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the prepayment payment of any Revolving Credit LoansLoans of, or reimbursement obligations L/C Obligations owed to, any such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations are held by the Lenders pro rata in accordance with the Commitments. 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 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto; and
(dg) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline each Issuing Lender each agree agrees in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit L/C Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Revolving Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Notwithstanding anything to the contrary contained herein, the rights and remedies against a Defaulting Lender hereunder are in addition to other rights and remedies which the Borrower may have against such Defaulting Lender with respect to such Defaulting Lender’s failure to fund any portion of its Loans required to be funded by it hereunder, and which the Administrative Agent, any Issuing Lender or any Lender may have against such Defaulting Lender with respect to any such failure.
Appears in 2 contracts
Samples: Competitive Advance and Revolving Credit Agreement (Raytheon Co/), Five Year Competitive Advance and Revolving Credit Agreement (Raytheon 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 Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.5;
(b) the Commitment and Outstanding 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 14.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderhereunder;
(c) if any Swingline Loan Swing Line Loans shall be outstanding or Letters of Credit Outstanding exists any LC Obligations shall exist at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the unfunded participations in and commitments with respect to such Swingline Loan and Letters of Credit Outstanding Swing Line Loans or Facility LCs shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ Outstanding Credit Exposures Exposure plus such Defaulting Lender’s Swingline Exposure Lenders’ Loans and Letter of Credit Exposure participations in and commitments with respect to Loans and Facility LCs does not exceed the total of all non-Defaulting Lenders’ Lender’s Commitments and (y) the applicable conditions set forth in Section 7 Article IV are satisfied at such time;; provided, that the LC Fees payable to the Lenders shall be determined taking into account such reallocation.
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, to prepay such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) the outstanding Swing Line Loans that were not reallocated and (y) second, to cash collateralize such Defaulting Lender’s Letter Pro Rata Share of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) the LC Obligations in accordance with the procedures set forth in Section 5.2(a) 8.1 for so long as such Letter of Credit Facility LC Exposure is outstanding;
(iii) if the a Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Facility LC Exposure pursuant to this Section 2.14(c)clause (i) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 2.19.4 with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Facility LC Exposure during the period such Letter of Credit Defaulting Lender’s Facility LC Exposure is cash collateralized;; and
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent if any Defaulting Lender’s Letter of Credit Facility LC Exposure is neither not cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit LC Issuer or any Lender hereunder, all letter of credit fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) 2.19.4 with respect to such portion of such Letter of Credit Defaulting Lender’s Facility LC Exposure shall instead be payable to the Letter of Credit LC Issuer until such portion of such Defaulting Lender’s Letter of Credit Facility LC Exposure is cash collateralized and/or reallocatedcollateralized;
(vid) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit LC Issuer shall not be required to issue, amend issue or increase Modify any Letter of CreditFacility LC, 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 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein2.22(c); and
(viie) 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 14.8(b) 11.2 but excluding Section 14.72.20) 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 Letter of Credit LC Issuer or Swingline Swing Line Lender hereunder, (iii) third, if so determined by to the Administrative Agent funding of any Revolving Loan or requested by a Letter of Credit Issuer the funding or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender collateralization of any participating interest in any Swingline Swing Line Loan or Letter of Credit, (iv) fourth, to the funding of any Loan 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 Administrative Agent, (viv) fifthfourth, if so determined by the Administrative Agent and the BorrowerCompany, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (viv) sixthfifth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer Borrowers or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Borrower Borrowers or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viiivi) eighthsixth, if so determined by the Administrative Agent, distributed to the Lenders other than the Defaulting Lender until the ratio of the Outstanding Credit Exposure of such Lenders to the Aggregate Outstanding Exposure equals such ratio immediately prior to the Defaulting Lender’s failure to fund any portion of any Loans or participations in Facility LCs or Swing Line Loans and (vii) seventh, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided provided, that if such payment is (x) a prepayment of the principal amount of any Revolving Credit Loans or drawings Reimbursement Obligations in respect of Letter of Credits for draws under Facility LCs with respect to which a Defaulting Lender the LC Issuer has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfiedobligations, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations Reimbursement Obligations owed to, all non-Lenders that are not Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations Reimbursement Obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Amendment Agreement (Polaris Industries Inc/Mn), Credit Agreement (Polaris Industries Inc/Mn)
Defaulting Lenders. Notwithstanding any provision of this Agreement any Loan Document to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the Available unused 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 the Required Lenders or the Required any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender Lender, then:
(i) all or the Swingline Exposure (other than any part portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c)) and LC Exposure of such Swingline Loan Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.05(d) and Letters of Credit Outstanding Section 2.05(e)) shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders in accordance with their respective Applicable Percentages (for the purposes of such reallocation, such Defaulting Lender’s Commitment shall be disregarded in determining the Non-Defaulting Lenders’ respective Applicable Percentages), but only to the extent that (xA) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total sum of all nonNon-Defaulting Lenders’ Commitments and (yB) the conditions set forth in Section 7 are satisfied at after giving effect to any such timereallocation, no Non-Defaulting Lender’s Revolving Credit Exposure shall exceed such Non-Defaulting Lender’s Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one three Business Day Days following the Borrower’s receipt of written notice by from the Administrative Agent Agent, (xA) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) above) that has not been reallocated and (yB) second, cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s Letter of Credit LC Exposure (after giving effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) above) that has not been reallocated in accordance with the procedures set forth in Section 5.2(a2.05(k) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.11(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter portion of Credit such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to the extent the Letter if any portion of Credit such Defaulting Lender’s LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the all Letter of Credit participation fees that otherwise would have been payable to such Defaulting Lender under Section 2.11(b) with respect to such Defaulting Lender’s reallocated LC Exposure shall be payable to the Non-Defaulting Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Applicable Percentages;Percentages after giving effect to such reallocation; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all Letter of Credit participation fees that otherwise would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.11(b) with respect to such portion of such Letter of Credit Defaulting Lender’s unreallocated LC Exposure shall instead be payable to the Letter of Credit Issuer until such Issuing Banks, ratably based on the portion of such Defaulting Lender’s Letter LC Exposure attributable to Letters of Credit issued by each Issuing Bank, until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;pursuant to clause (i) or (ii) above; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer no Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be 100% covered by the Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.20(c), and participating interests in any such newly made Swingline Loan or any 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 2.14(c)(i2.20(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount . In the event that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject Bankruptcy Event with respect to any applicable requirements of lawLender Parent shall have occurred following the Closing Date and for so long as such Bankruptcy Event shall continue, no Issuing Bank shall be applied at such time required to issue, amend, extend, renew or times as may be determined by the Administrative Agent (i) first, to the payment of increase 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthand the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender shall have entered into arrangements with the Borrower or the applicable Lender reasonably satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender and each agree Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure Exposures and Letter of Credit Exposure LC Exposures of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitment, and on such date such Lender shall purchase at par such of the Revolving Credit Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Credit Loans in accordance with its Applicable Percentage. The rights and remedies against, and with respect to, a Defaulting Lender under this Section 2.20 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Lender, each Issuing Bank, the Swingline Lender, the Borrower or any other Loan Party may at any time have against, or with respect to, such Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (MPLX Lp), Credit Agreement (Marathon Petroleum 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) (i) commitment fees shall cease to accrue on the Available unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.11(a) and (ii) commitment fees shall cease to accrue on the unfunded portion of the 364-Day Commitment of such Defaulting Lender pursuant to Section 2.11(b);
(b) the Revolving Commitment and Credit Revolving Exposure (in the case of a Defaulting Lender that is a Revolving Lender) or the 364-Day Commitment and 364-Day Exposure (in the case of a Defaulting Lender that is a 364-Day Lender) of such Defaulting Lender shall not be included in determining whether all the Required Lenders or the Required any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02), ; provided that only any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan or Letters of Credit Outstanding LC Exposure exists at the time a such Revolving Lender becomes a Defaulting Lender Lender, then:
(i) all or any part of the LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Swingline Loan Defaulting Lender shall have funded its participation as contemplated by Sections 2.04(e) and Letters 2.04(f)) of Credit Outstanding such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent that (xA) the sum of all non-Defaulting Lenders’ Credit Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total sum of all non-Defaulting Lenders’ Revolving Commitments and (yB) at the conditions set forth in time of such reallocation, no Event of Default shall have occurred and be continuing; provided that, subject to Section 7 are satisfied at 9.17, 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 timenon-Defaulting Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s Swingline LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 5.2(a2.04(i) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(b2.11(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period for so long as such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if any portion of the extent the Letter of Credit LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(aSections 2.11(a) and Section 4.1(b2.11(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentages;reallocation; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all participation fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.11(b) with respect to such portion of such Letter of Credit Defaulting Lender’s LC Exposure shall instead be payable to the Letter of Credit Issuer until such portion Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s Letter LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocatedcollateralized;
(vid) so long as any such Revolving Lender is a Defaulting Lender, the Swingline Lender no Issuing Bank shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure, as applicable, will be 100% fully covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.19(c), and participating interests in any such newly issued issued, amended, renewed or increased extended Letter of Credit or newly made Swingline Loan shall will be allocated among the non-Defaulting Lenders in a manner consistent with Section 2.14(c)(i2.19(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(viie) any amount payable to such Defaulting Lender hereunder (whether on account payment of principal, interest, fees or otherwise other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise, and including any amount amounts made available to the Administrative Agent by that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) shall9.08), 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, shall be applied at such time or times as may be determined by the Administrative Agent (i) as follows: first, to the payment of any amounts owing by such that Defaulting Lender to the Administrative Agent hereunder, (ii) ; second, pro ratain the case of a Defaulting Lender that is a Revolving Lender, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) each Issuing Bank; third, if so determined by to cash collateralize the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, Issuing Lenders’ LC Exposure with respect to be held in such account as cash collateral for future funding obligations of the Defaulting Lender in accordance with Section 2.04(i); fourth, as the Borrower may request (so long as no Default or Event of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourthDefault has occurred and is continuing), 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 AgentAgent in accordance with the terms hereof; fifth, (v) fifthin the case of a Default Lender that is a Revolving Lender, if so determined by the Administrative Agent and the Borrower, to be held in such a non-interest bearing deposit account as cash collateral for future funding and released in order to (x) satisfy obligations of the such Defaulting Lender to fund Loans under this Agreement and (y) cash collateralize the Issuing Banks’ future LC Exposure with respect to such Defaulting Lender with respect to future Letters of any Revolving Credit Loans issued under this Agreement, (vi) in accordance with Section 2.04(i); sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer Lenders or Swingline Lender the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender, Lender or such Letter of Credit Issuer or Swingline Lender Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, (vii) seventhso long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, ; and (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 payment of the principal amount of any Revolving Credit Loans or drawings in respect of Letter of Credits for which LC Disbursements and such Lender is a Defaulting Lender has funded its participation obligations and under clause (ya) made at a time when of the conditions set forth in Section 7 are satisfieddefinition thereof, such payment shall be applied solely to prepay pay the Revolving Credit relevant Loans of, and reimbursement obligations LC Disbursements owed to, all the relevant non-Defaulting Lenders on a pro rata basis prior to being applied pursuant to Section 2.04(i). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to Section 2.04(i) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. In the prepayment of event that (i) a Bankruptcy Event with respect to a Revolving Lender Parent shall occur following the date hereof and for so long as such Bankruptcy Event shall continue or (ii) any Issuing Bank has a good faith belief that any Revolving Credit LoansLender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend, renew or reimbursement obligations owed toextend any Letter of Credit, unless such Issuing Bank, as applicable, shall have entered into arrangements with the Borrower or the applicable Revolving Lender, satisfactory to such Issuing Bank, as applicable, to defease any Defaulting Lender; and
(d) risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline each Issuing Bank each agrees that a Revolving Lender each agree that is a Defaulting Lender has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date date, subject to clause (e) of this Section 2.19, such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Crown Castle International Corp), Credit Agreement (Crown Castle International 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 Available 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 amendment, waiver or waiver other modification pursuant to Section 14.110.02); provided, provided that any waiverthis clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Company shall within one Business Day following notice by the U.S. 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 for the benefit of each Issuing Bank only the Company’s obligations corresponding to such Defaulting Lender’s 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 5.2(a) for so long as such Letter of Credit Exposure is outstanding2.05(j);
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower Company shall not be required to pay any fees to or for the benefit of such Defaulting Lender pursuant to Section 4.1(b2.12(c) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if the extent the Letter of Credit LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a2.12(a) and Section 4.1(b2.12(c) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer applicable Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have otherwise been payable to such Defaulting Lender under Section 4.1(b) (solely with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter Commitment that was utilized by such LC Exposure) and letter of Credit credit fees payable under Section 2.12(c) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocatedcollateralized;
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer no 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 Borrowers Company in accordance with Section 2.14(c2.22(c), and participating interests in any such newly made Swingline Loan or any 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 2.14(c)(i2.22(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(viie) any amount payable to such Defaulting Lender hereunder (whether on account payment of principal, interest, fees or otherwise and including any amount that would otherwise be payable other amounts received by either Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to such Article VII or otherwise) or received by either Agent from a Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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, 10.08 shall be applied at such time or times as may be determined by the Administrative such Agent (i) as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent Agents hereunder, (ii) ; second, pro rata, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer Issuing Banks or Swingline Lender hereunder, (iii) ; third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations such Defaulting Lender’s LC Exposure other than any portion of such LC Exposure that has been reallocated to other Lenders or cash collateralized in accordance with the Defaulting Lender terms hereof; fourth, as the Borrower may request (so long as no Default or Event of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourthDefault exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Applicable Agent, (v) ; fifth, if so determined by the U.S. Administrative Agent and the BorrowerCompany, to be held in a deposit account and released pro rata in order to (x) satisfy such account as Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateral for collateralize the future funding obligations of the such Defaulting Lender of any Revolving participation in any Letter of Credit Loans under this Agreement, (vi) or Swingline Loan; sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer the Issuing Banks or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer any Issuing Bank or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, (vii) seventhso long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower Company as a result of any judgment of a court of competent jurisdiction obtained by the Borrower Company 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 (x) such payment is (x) a prepayment payment of the principal amount of any Revolving Credit Loans or drawings LC Disbursements in respect of Letter of Credits for which a such Defaulting Lender has not fully funded its participation obligations appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 7 are satisfied4.02 were satisfied or waived, such payment shall be applied solely to prepay pay the Revolving Credit Loans of, and reimbursement obligations LC Disbursements owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the prepayment payment of any Revolving Credit LoansLoans of, or reimbursement obligations LC Disbursements owed to, any such Defaulting Lender until such time as all Loans and funded and unfunded participations in LC Disbursements and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.22(c)(i). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.22(e) shall be deemed paid to and redirected by such Defaulting Lender; and
, and each Lender irrevocably consents hereto. If (di) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the Effective Date and for so long as such event shall continue or (ii) the Swingline Lender or any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the applicable Issuing Bank, as the case may be, shall have entered into arrangements with the Company or such Lender, satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative each Agent, the BorrowerCompany, the Letter of Credit Issuer and the Swingline Lender and each agree Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Sysco Corp), Credit Agreement (Sysco 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 Available Commitment of such Defaulting Lender pursuant to Section 4.1(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 14.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
(ci) if any Swingline Loan or Letters of Credit Outstanding LC Exposure exists at the time a Lender becomes is a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall within one Business 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 such Defaulting Lender’s 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 5.2(a2.08(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iiiii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter LC Exposure is not cash collateralized as required in Section 2.08(k)(i) above, then, without prejudice to any other rights or remedies of Credit Exposure pursuant to this the Issuing Bank or any Lender hereunder, all letter of credit fees payable under Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b3.05(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during shall be payable to the period Issuing Bank until such Letter of Credit LC Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(viiii) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(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 2.14(c)(i2.08(k)(i) (and Defaulting Lenders shall not participate therein)above; and
(viiiv) any amount payable to such Defaulting Lender hereunder (whether on account for the avoidance of principaldoubt, interest, fees or otherwise the Borrower shall retain and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) shall, in lieu of being distributed to such reserve its other rights and remedies respecting each 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Bill Barrett Corp)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if If any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender, to the extent permitted by applicable law:
(a) fees Ticking Fees shall cease to accrue on the Available unused portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.10(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, waiver or other modification permitted to be effected by the Required Lenders pursuant to Section 8.02), and, notwithstanding Section 8.02, any such Defaulting Lender shall not have the right to vote on or consent to any amendment or waiver pursuant to Section 14.1), provided that any waiver, under this Agreement if such amendment or modification requiring waiver does not disproportionately in an adverse manner affect the consent rights of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of or increase such Defaulting Lender;’s Commitment hereunder; In the event that the Administrative Agent and the Borrower agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then on such date such Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine is necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
(c) if any Swingline Loan or Letters of Credit Outstanding exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (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 such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account Any payment of principal, interest, fees or otherwise and including any amount that would otherwise be payable other amounts received by the Administrative Agent for the account of a Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to such Article 6 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 8.08 shall, in lieu of being distributed to such Defaulting Lender, be retained by unless the Administrative Agent in determines that such application entails a segregated account and, subject to any material risk of violation of applicable requirements of lawlaw or order, be applied at such time or times as may be determined by the Administrative Agent (i) as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to as the payment Borrower may request (so long as no Default or Event of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthDefault exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth; third, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such account as cash collateral for Defaulting Lender’s potential future funding obligations of the Defaulting Lender of any Revolving Credit with respect to Loans under this Agreement; fourth, (vi) sixth, to the payment so long as no Default or Event of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventhDefault exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, ; and (viii) eighthfifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is (x) a prepayment payment of the principal amount of any Revolving Credit Loans or drawings in respect of Letter of Credits for which a such Defaulting Lender has not fully funded its participation obligations appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 7 are satisfied3.02 were satisfied or waived, such payment shall be applied solely to prepay pay the Revolving Credit Loans of, and reimbursement obligations owed to, of all non-Defaulting Lenders on a pro rata basis prior to being applied to the prepayment payment of any Revolving Loans of such Defaulting Lender until such time as all Credit LoansExposure of each Lender is held in accordance with such Lender’s Commitment. Any payments, prepayments or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that other amounts paid or payable to a Defaulting Lender has adequately remedied all matters that caused such Lender are applied (or held) to be pay amounts owed by a Defaulting Lender, then Lender pursuant to this Section 2.18(c) shall be deemed paid to and redirected by such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such each Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentageirrevocably consents hereto.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Applied Materials Inc /De), Term Loan Credit Agreement (Applied Materials Inc /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) commitment fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.10(a);
(b) the Commitment and Credit Exposure of such Defaulting Lender shall not be included in determining whether all the Majority Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02); provided, that, except as otherwise provided that any waiverin Section 9.02, amendment this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure or LC Exposure (other than (A) the portion of such Swingline Loan Exposure referred to in clause (b) of the definition of such term and Letters (B) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(d) or (e)) of Credit Outstanding such Defaulting Lender shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the non-Defaulting Lenders in accordance with their respective Applicable Percentages (for the purposes of such reallocation, such Defaulting Lender’s Commitment shall be disregarded in determining the non-Defaulting Lenders’ respective Applicable Percentages), but only to the extent that (xX) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments Commitments, (Y) after giving effect to any such reallocation, no non-Defaulting Lender’s Credit Exposure shall exceed such non-Defaulting Lender’s Commitment and (yZ) the conditions set forth in Section 7 are satisfied no Default or Event of Default has occurred and is continuing at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one three (3) Business Day Days following written 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) secondsecond cash collateralize, cash collateralize for the benefit of the applicable Issuing Banks, the Borrower’s obligations corresponding to such Defaulting Lender’s 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 5.2(a2.04(j) for so long as such Letter of Credit Defaulting Lender’s LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(b2.10(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if any portion of the extent the Letter of Credit LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a2.10(a) and Section 4.1(b2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;Percentages after giving effect to such reallocation; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all participation fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.10(b) with respect to such portion of such Letter of Credit Defaulting Lender’s LC Exposure shall instead be payable to the Letter of Credit Issuer until such applicable Issuing Banks, ratably based on the portion of such Defaulting Lender’s Letter LC Exposure attributable to Letters of Credit issued by each such Issuing Bank, until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;pursuant to clause (i) or (ii) above; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer no 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 Borrowers Borrower in accordance with Section 2.14(c2.18(c), and Swingline Exposure related to any such newly made Swingline Loan 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 2.14(c)(i2.18(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and.
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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, a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent shall occur following the payment of any amounts owing by date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunderor 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, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, Lender shall not be required to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, (iv) fourthunless the Swingline Lender or such Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swingline Lender or Issuing Bank, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender and each Issuing Bank agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure LC Exposures of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage. The rights and remedies against, and with respect to, a Defaulting Lender under this Section 2.18 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Lender, each Issuing Bank, the Borrower or any other Loan Party may at any time have against, or with respect to, such Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Southwestern Energy Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.05(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 14.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 12.10(e);
(c) if any Swingline Loan Loans are outstanding, or Letters of Credit Outstanding any LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
Lender, then (i) all or any part of such LC Exposure of such Defaulting Lender and such Lender’s Pro Rata Percentage under the applicable Subfacility or Subfacilities of any Swingline Loan and Letters of Credit Outstanding shall Exposure outstanding at such time will, subject to the limitation in the proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders in accordance with their respective Applicable Pro Rata Percentages but only to under the extent applicable Subfacility or Subfacilities; provided that (xA) the sum of all noneach Non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Revolving Exposure and Letter of Credit Exposure does may not in any event exceed the total Revolving Commitment of all nonsuch Non-Defaulting Lenders’ Commitments Lender as in effect at the time of such reallocation, (B) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Company, any Borrower, any Administrative Agent, any Issuing Bank, any Swingline Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender and (yC) the conditions set to Credit Extensions forth in Section 7 6 (other than Section 6.01) shall be satisfied at the time of such reallocation (and, unless the Borrowers shall have otherwise notified the Administrative Agent at such time, the Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at such time;
), (ii) if to the reallocation described in clause extent that all or any portion (ithe “unreallocated portion”) above of the Defaulting Lender’s LC Exposure and Swingline Exposure cannot, or can only partially, be effectedso reallocated to Non-Defaulting Lenders, whether by reason of the first proviso in Section 2.11(c)(i) above or otherwise, the Borrower Borrowers shall within one two Business Day Days following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Pro Rata Percentage under the applicable Subfacility or Subfacilities of outstanding Swingline Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize Cash Collateralize such Defaulting Lender’s Letter of Credit LC Exposure (after giving pro forma effect to any partial reallocation pursuant to clause (i) above) ), in accordance with the procedures set forth in Section 5.2(a2.13(j) for so long as such Letter of Credit LC Exposure is outstanding;
, (iii) if the Borrower cash collateralizes Borrowers Cash Collateralize any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to the requirements of this Section 2.14(c2.11(c), the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.05(c) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
Cash Collateralized, (iv) to if the extent the Letter of Credit LC Exposure of the nonNon-Defaulting Lenders is reallocated pursuant to the requirements of this Section 2.14(c2.11(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.05(c) shall be adjusted in accordance with such nonNon-Defaulting Lenders’ Applicable Percentages;
Pro Rata Percentage under the applicable Subfacility or Subfacilities and the Borrowers shall not be required to pay any fees to the Defaulting Lender pursuant to Section 2.05(c) with respect to such Defaulting Lender’s LC Exposure during the period that such Defaulting Lender’s LC Exposure is reallocated, or (v) to the extent if any Defaulting Lender’s Letter of Credit LC Exposure is neither cash collateralized Cash Collateralized nor reallocated pursuant to the requirements of this Section 2.14(c2.11(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.05(c) with respect to such portion of such Letter of Credit Defaulting Lender’s LC Exposure shall instead be payable to the Letter of Credit Issuer applicable Issuing Bank until such portion of such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized Cash Collateralized and/or reallocated;
(vid) so long as (i) no Issuing Bank will be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless such Issuing Bank is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Revolving Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a Defaulting Lender, combination thereof in accordance with the requirements of Section 2.11(c) above or otherwise in a manner reasonably satisfactory to such Issuing Bank; and
(e) no Swingline Lender shall not will be required to fund any Swingline Loan and Loans unless the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it Swingline Lender is reasonably satisfied that any exposure that would result from the related exposure will be 100% to such Defaulting Lender is eliminated or fully covered by the Revolving Commitments of the nonNon-Defaulting Lenders and/or cash collateral will or a combination thereof in accordance with the requirements of Section 2.11(c) above.
(f) The Company, Administrative Agent and applicable Issuing Bank may agree in writing that a Lender is no longer a Defaulting Lender. At such time, Pro Rata Percentages under the applicable Subfacility or Subfacilities shall be provided reallocated without exclusion of such Lender’s Commitments and Loans, and all outstanding Loans, LC Obligations and other exposures under the Commitments shall be reallocated among Lenders and settled by the Borrowers Administrative Agent (with appropriate payments by the reinstated Lender) in accordance with the readjusted Pro Rata Percentages under the applicable Subfacility or Subfacilities and any amount that has been deposited in accordance with Section 2.14(c)2.13(j) to Cash Collateralize any LC Exposure shall be automatically released and returned to the Company or the Relevant Borrower. Unless expressly agreed in writing by the Company, the Administrative Agent and applicable Issuing Bank, no reinstatement of a Defaulting Lender shall constitute a waiver or release of claims against such Lender. The failure of any Lender to fund a Loan, to make a payment in respect of LC Obligations or otherwise to perform its obligations hereunder shall not relieve any other Lender of its obligations, and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan no Lender shall be allocated among nonresponsible for default by another Lender. Subject to Section 12.22, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lenders in Lender as a manner consistent with Section 2.14(c)(i) (and result of such Non-Defaulting Lenders shall not participate therein); andLender’s increased exposure following such reallocation.
(viig) any amount payable to such Defaulting Lender hereunder (whether on account Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 10 or otherwise and including any amount received by the Administrative Agent for that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b12.10(c) but excluding Section 14.7) shalland (d)), 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, shall be applied at such time or times as may be determined by the Administrative Agent (i) as follows: first, to the payment of any amounts owing by such that Defaulting Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to the payment on a pro rata basis of any amounts owing by such that Defaulting Lender to the Letter of Credit Issuer or any Issuing Bank and any Swingline Lender hereunder, (iii) ; third, if as the Company may request (so determined by the Administrative Agent long as no Default or requested by a Letter Event of Credit Issuer 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) fourthDefault exists), to the funding of any Loan in respect of which such that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth; fourth, if so determined by the Administrative Agent and the BorrowerCompany, to be held in a non-interest bearing Deposit Account and released pro rata in order to (x) satisfy such account as cash collateral for Defaulting Lender’s potential future funding obligations of the Defaulting Lender of any Revolving Credit with respect to Loans under this Agreement and (y) Cash Collateralize, in accordance with Section 2.13(j), the Issuing Banks’ potential future fronting exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, (vi) sixth; fifth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer the Issuing Banks or the Swingline Lender Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer any Issuing Bank or any Swingline Lender against such that Defaulting Lender as a result of such that Defaulting Lender’s breach of its obligations under this Agreement; sixth, (vii) seventhso long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower Company or any of its Restricted Subsidiaries pursuant to any Bank Product with such Defaulting Lender as certified by a Responsible Officer of the Company to the Administrative Agent (with a copy to the Defaulting Lender) prior to such date of payment; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Company or any other Credit Party as a result of any judgment of a court of competent jurisdiction obtained by the Borrower Company or any other Credit Party against such that Defaulting Lender as a result of such that Defaulting Lender’s breach of its obligations under this Agreement, ; and (viii) eighth, to such that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that that, if such payment is (x) a prepayment payment of the principal amount of any Revolving Credit Loans or drawings in respect a payment of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfiedany unreimbursed LC Disbursements, such payment shall be applied solely to prepay pay the Revolving Credit relevant Loans of, and reimbursement obligations unreimbursed LC Disbursements owed to, all nonthe relevant Non-Defaulting Lenders on a pro rata basis prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agentmanner set forth in this Section 2.11(g). Any payments, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that prepayments or other amounts paid or payable to a Defaulting Lender has adequately remedied all matters that caused such Lender are applied (or held) to be pay amounts owed by a Defaulting Lender, then such Lender or to post Cash Collateral pursuant to Section 2.13(j) shall cease be deemed paid to be a and redirected by that Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such each Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentageirrevocably consents hereto.
Appears in 2 contracts
Samples: Credit Agreement (SunOpta Inc.), Credit Agreement (SunOpta Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the Available unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a);2.11; and
(b) the Revolving Commitment and Credit Revolving Exposure of such Defaulting Lender shall not be included in determining whether all the Required Lenders or the Required any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.110.02), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 10.02, require the consent of such Defaulting Lender;
(c) if any Swingline Loan or Letters of Credit Outstanding exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (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 such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a) for so long as such Letter of Credit Exposure is outstanding;
(iii) if terms hereof. In the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees event that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment Company shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall fund its Loans to each Borrower or purchase at par such of the Loans Revolving Exposures of the other Lenders (other than Swingline Loans) Lenders, in each case as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans Revolving Exposures ratably in accordance with its Applicable Percentageapplicable Commitments. Such Lender shall cease to be a Defaulting Lender upon remedying all matters to the satisfaction of the Administrative Agent and the Company that caused such Lender to be a Defaulting Lender, including the funding of any Revolving Exposure necessary in order for such Lender to hold such Exposures ratably in accordance with its applicable Commitments.
Appears in 2 contracts
Samples: Credit Agreement (CDK Global Holdings, LLC), Credit Agreement (CDK Global Holdings, LLC)
Defaulting Lenders. Notwithstanding (a) No Commitment of any provision Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 4.3 or otherwise specifically provided herein, performance by the Borrower of its obligations shall not be excused or otherwise modified as a result of the operation of this Agreement Section 4.3. The rights and remedies against a Defaulting Lender under this Section 4.3 are in addition to any other rights and remedies which the contraryBorrower, if the Agent or any Lender becomes may have against such Defaulting Lender.
(b) If the Borrower and the Agent agree in writing in their reasonable determination that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, then the following provisions shall apply for Agent will so long notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender is a Defaulting Lender:
(a) fees shall cease will, to accrue on the Available Commitment extent applicable, purchase at par that portion of such Defaulting Lender pursuant to Section 4.1(a);
(b) outstanding Commitments of the Commitment and Credit Exposure of such Defaulting Lender shall not be included in determining whether all other Lenders or take such other actions as the Required Lenders have taken or Agent may take any action hereunder (including any consent determine to any amendment or waiver pursuant be necessary to Section 14.1), provided that any waiver, amendment or modification requiring cause the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require Commitments to be held on a pro rata basis by the consent of such Defaulting Lender;
(c) if any Swingline Loan or Letters of Credit Outstanding exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only Percentages, whereupon such Lender will cease to be a Defaulting Lender; provided, that, no adjustments will be made retroactively or with duplication 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 (x) otherwise expressly agreed by the sum affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of all non-Defaulting Lenders’ Credit Exposures plus any claim of any party hereunder arising from such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (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 such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise having been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and.
(viic) Notwithstanding anything to the contrary contained in this Agreement, any amount payable to such Defaulting Lender hereunder (whether on account payment of principal, interest, commitment fees or otherwise and including other amounts received by the Agent for the account of any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(bunder this Agreement (whether voluntary or mandatory, at maturity or otherwise) but excluding Section 14.7) 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, shall be applied at such time or times as may be determined by the Administrative Agent (i) as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to as the payment Borrower may request (so long as no Event of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to Default shall have occurred and 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) fourthcontinuing), to the funding of any Committed Loan in respect of which such that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth; third, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fourth, (vii) seventhso long as no Event of Default shall have occurred and be continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, ; and (viii) eighthfifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that provided, that, if (x) such payment is (x) a prepayment payment of the principal amount of any Revolving Credit Loans or drawings Committed Loan in respect of Letter of Credits for which a such Defaulting Lender has not fully funded its participation obligations appropriate share, and (y) such Committed Loans were made at a time when the applicable conditions set forth in Section 7 are satisfied9 were satisfied or waived, such payment shall be applied solely to prepay pay the Revolving Credit Committed Loans of, and reimbursement obligations owed to, of all nonNon-Defaulting Lenders on a pro rata basis prior to being applied to the prepayment payment of any Revolving Credit LoansCommitted Loans of such Defaulting Lender and provided, or reimbursement further, that any amounts held as cash collateral for funding obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused 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 be a Defaulting Lender, then Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 4.3 shall be deemed paid to and redirected by such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such each Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentageirrevocably consents hereto.
Appears in 2 contracts
Samples: Revolving Credit Agreement, Revolving Credit Agreement (AerCap Holdings N.V.)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lenderapply:
(ai) fees Facility Fees shall cease to accrue on the Available Commitment unused portion of such Defaulting Lender pursuant to Section 4.1(a);Lender’s Commitment.
(bii) the The Commitment and Outstanding Credit Exposure of such Defaulting Lender shall not be included in determining whether all the Required Lenders or the Required other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 14.18.2), ; provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender (in such case, to the extent such Defaulting Lender is an affected Lender;).
(ciii) if any Swingline Loan Unless a Default or Letters of Credit Outstanding exists at the time a Lender becomes a Defaulting Lender then:
(i) an Unmatured Default shall have occurred and be continuing, all or any part of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender’s LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares of the Aggregate Commitment, but only to the extent (x) the sum of all non-Defaulting Lenders’ Outstanding Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;Commitments.
(iiiv) if If the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (iii) above, then the LC Participation Fees payable to the Lenders pursuant to Section 2.6.2 shall be adjusted in accordance with such reallocation.
(v) If (or to the extent that) the reallocation described in clause (iiii) above cannot, or can only partially, be effected, the each Borrower shall shall, within one Business Day following notice by the Administrative Agent (x) firstand until and for so long as such condition shall exist), prepay cash collateralize for the benefit of the Issuing Banks such Borrower’s obligations corresponding to the portion of such Defaulting Lender’s Swingline non-reallocated 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 (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (iiii) above) in accordance with the procedures set forth in Section 5.2(a2.4(i) for so long as such Letter of Credit unreallocated LC Exposure is outstanding;outstanding or as otherwise provided pursuant to Section 2.22(c) below.
(iiivi) if the If a Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (v) above, the such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 2.6.2 with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;.
(ivvii) The Agent shall adjust the allocation of payments hereunder to the extent the Letter ensure that a Defaulting Lender does not receive payment in respect of Credit Exposure 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 in this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;2.22.
(vb) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(bIf (i) a Bankruptcy Event with respect to such portion the parent company of such Letter of Credit Exposure any Lender shall instead be payable to occur following the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) date hereof and for so long as such event shall continue or (ii) any Issuing Bank shall have a good faith belief that any Lender is a Defaulting Lenderhas 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 Letter of Credit Issuer such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that such Issuing Bank shall have entered into arrangements with 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 2.14(c), and participating interests in any applicable Borrower or 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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable Lender reasonably satisfactory to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable Issuing Bank to such Defaulting Lender pursuant mitigate the risk to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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 it in respect of which such Defaulting Lender has failed failing to fund satisfy its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; andparticipating interest therein.
(dc) in In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer each Borrower and the Swingline Lender each Issuing Bank shall agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans and participations in LC Disbursements of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentagePro Rata Share, and all cash collateral then being held pursuant to Section 2.22(a)(v) above in connection with the LC Exposure of such Defaulting Lender shall be released and returned to the applicable Borrower.
(d) Except as expressly provided in this Section 2.22 in connection with the obligations of the Issuing Banks, the obligation of each Lender and Issuing Bank 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.
(e) None of the foregoing provisions of this Section 2.22 shall be deemed to effect, diminish or release any rights, claims or causes of action the Borrowers may have against any Lender that becomes a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Union Electric Co), Credit Agreement (Union Electric Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees the Revolving Commitment Fees and the Delayed Draw Term Ticking Fees shall cease to accrue on the Available unused amount of the Revolving Commitment or on the Delayed Draw Term Commitment, as the case may be, of such Defaulting Lender pursuant to Section 4.1(a)Lender;
(b) the Revolving Commitment, the Revolving Exposure, the Term Commitment and Credit Exposure the Term Loans of such Defaulting Lender shall not be included in determining whether all the Required Lenders or the Required any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.110.02), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 10.02, require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding LC Exposure exists at the time a any Revolving Lender becomes a Defaulting Lender Lender, then:
(i) all or the Swingline Exposure (other than any part portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.21(c)) and LC Exposure of such Swingline Loan Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.20(d) and Letters of Credit Outstanding 2.20(f)) shall be reallocated among the nonNon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent (x) that the sum of all nonNon-Defaulting Revolving Lenders’ Credit Revolving Exposures plus such Defaulting Lender’s Swingline Exposure (excluding the portion thereof referred to above) and Letter of Credit LC Exposure (excluding the portion thereof referred to above) does not exceed the total sum of all nonNon-Defaulting Revolving Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeRevolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the each Borrower shall within one Business Day following written notice by the Administrative Agent (xA) first, prepay the portion of such Defaulting Lender’s Swingline Exposure attributable to Swingline Loans made to such Borrower (after giving effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) above) that has not been reallocated and (yB) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s Letter LC Exposure attributable to Letters of Credit Exposure issued for the account of such Borrower (after giving effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) above) that has not been reallocated as set forth in such clause in accordance with the procedures set forth in Section 5.2(a2.20(n) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower Borrowers shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(b2.09(c) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period for so long as such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if any portion of the extent the Letter of Credit LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(aSections 2.09(a) and Section 4.1(b2.09(c) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentages;reallocation; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all participation fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.09(c) with respect to such portion of such Letter of Credit its LC Exposure shall instead be payable to the Letter Issuing Banks (and allocated among them ratably based on the amount of Credit Issuer until such portion of the LC Exposure of such Defaulting Lender’s Letter Lender attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer no Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless unless, in each case, it is satisfied that the related exposure and such Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure will be 100% fully covered by the Revolving Commitments of the nonNon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(c)clause (c) above, and participating interests in any such newly issued funded Swingline Loan or increased in any such issued, amended, renewed or extended Letter of Credit or newly made Swingline Loan shall will be allocated among nonthe Non-Defaulting Revolving Lenders in a manner consistent with Section 2.14(c)(iclause (c)(i) above (and such Defaulting Lenders Lender shall not participate therein); and
. In the event that (viix) any amount payable a Bankruptcy Event with respect to a Lender Parent of a Revolving Lender shall have occurred following the Effective Date and for so long as such Defaulting Lender hereunder Bankruptcy Event shall continue or (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 14.8(by) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunderor any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Revolving Lender commits to extend credit, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, Lender shall not be required to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in fund any Swingline Loan Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, (iv) fourthunless, in each case, the Swingline Lender or such Issuing Bank shall have entered into arrangements with the Company and any other applicable Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Revolving Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the BorrowerCompany, the Letter of Credit Issuer and the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender that is a Revolving Lender has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may to be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage, and such Revolving Lender shall thereupon cease to be a Defaulting Lender (but shall not be entitled to receive any Revolving Commitment Fees accrued during the period when it was a Defaulting Lender, and all amendments, waivers or modifications effected without its consent in accordance with the provisions of Section 10.02 and this Section during such period shall be binding on it). In the event that the Administrative Agent and the Company each agree that a Defaulting Lender that is a Term Lender has adequately remedied all matters that caused such Term Lender to be a Defaulting Lender, then on such date such Term Lender shall take such actions as the Administrative Agent may determine to be appropriate in connection with such Term Lender ceasing to be a Defaulting Lender, and such Term Lender shall thereupon cease to be a Defaulting Lender (but (x) in the case of a Delayed Draw Term Lender, shall not be entitled to receive any Delayed Draw Term Ticking Fees accrued during the period when it was a Defaulting Lender, and (y) all amendments, waivers or modifications effected without its consent in accordance with the provisions of Section 10.02 and this Section during such period shall be binding on it). The rights and remedies against, and with respect to, a Defaulting Lender under this Section are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent, any Issuing Bank, the Swingline Lender, any other Lender or any Loan Party may at any time have against, or with respect to, such Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Westinghouse Air Brake Technologies Corp), Credit Agreement (Westinghouse Air Brake Technologies 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 Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.03(a);
(b) the Commitment and Outstanding 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 14.1)8.01, provided that any waiver, amendment or modification requiring other than those which require the consent of all Lenders or of each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender);
(c) if any Swingline Loan or Letters of Credit Outstanding exists LC Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(i) so long as no Default or Event of Default has occurred and is continuing, all or any part of such Swingline Loan and Letters of Credit Outstanding the LC Obligations shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures LC Obligations plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure LC Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at sum of all non-Defaulting Lenders’ Outstanding Credit Exposure plus such timeDefaulting Lender’s LC Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) firstAgent, prepay cash collateralize for the benefit of the LC Issuers only the Borrower’s obligations corresponding to such Defaulting Lender’s Swingline Exposure LC Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) by depositing funds in accordance with the procedures set forth in Section 5.2(a) Facility LC Collateral Account for so long as such Letter of Credit Exposure is LC Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure LC Obligations pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) Facility Fees or LC Fees with respect to such cash collateralized portion of Defaulting Lender’s LC Obligations during the period such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is LC Obligations are cash collateralized;
(iv) to if the extent the Letter of Credit Exposure LC Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees LC Fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.03(c) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;Pro Rata Shares; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Exposure LC Obligations is neither cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer LC Issuers or any Lender hereunder, all fees Facility Fees that otherwise would have otherwise been payable to such Defaulting Lender under pursuant to Section 4.1(b2.03(a) (solely with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is Commitment that was utilized by such LC Obligations) and LC Fees payable to such Defaulting Lender pursuant to Section 2.03(c) with respect to such Defaulting Lender’s LC Obligations shall be payable to the LC Issuers until such LC Obligations are cash collateralized and/or reallocated;
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender no LC Issuer shall not be required to fund issue or Modify any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of CreditFacility LC, 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 Borrower in accordance with Section 2.14(c2.18(c), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan Modified Facility LC shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.14(c)(i2.18(c)(i) (and Defaulting Lenders shall not participate therein); and;
(viie) any amount payable the Borrower may, subject to the requirements of Sections 8.04 and 8.07, substitute for such Defaulting Lender hereunder (whether on account another financial institution, which financial institution shall be an Eligible Assignee and shall assume the Commitments of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to and purchase the Outstanding Credit Exposures held by such Defaulting Lender in accordance with Section 14.8(b8.07; provided, however, that (i) but excluding Section 14.7no Default shall have occurred and be continuing, (ii) shall, the Borrower shall have satisfied all of its obligations in lieu of being distributed connection with the Loan Documents with respect to such Defaulting Lender, be retained by the Administrative Agent in and (iii) if such assignee is not a segregated account andLender, subject to any applicable requirements of law, be applied at (A) such time or times as may be determined by the Administrative Agent (i) first, assignee is acceptable to the payment Agent and (B) the Borrower shall have paid the Agent a $3,500 administrative fee;
(f) to the extent the Agent receives any payments or other amounts for the account of any amounts owing by a Defaulting Lender under the Loan Documents, such Defaulting Lender shall be deemed to have requested that the Administrative Agent hereunder, (ii) second, pro rata, use such payment or other amount to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or Swingline Lender against such Defaulting Lender as a result of fulfill such Defaulting Lender’s breach previously unsatisfied obligations to fund a Revolving Credit Advance or any other unfunded payment obligation 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 AgreementSection 2.02(d), and 2.12(e), 2.16(d) or 7.05;
(viiig) eighth, to such Defaulting no Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely deemed to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior have consented to being applied increase its Commitment pursuant to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting LenderSection 2.04(c) unless that Lender shall have affirmatively given consent in accordance with that Section; and
(dh) for the avoidance of doubt, the Borrower shall retain and reserve its other rights and remedies respecting each Defaulting Lender. If (i) a Bankruptcy Event with respect to a parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) any 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, such LC Issuer shall not be required to Modify any Facility LC, unless such LC Issuer shall have entered into arrangements with the Borrower or such Lender, reasonably satisfactory to such LC Issuer to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline Lender LC Issuers each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders LC Obligations shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par on a ratable basis such of the Loans Outstanding Credit Exposures 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 Outstanding Credit Exposures in accordance with its Applicable PercentagePro Rata Share, whereupon such Lender shall cease to be a Defaulting Lender. For the purposes of clarity, in the event any Defaulting Lender is reinstated as a non-Defaulting Lender in accordance with the terms hereof (i) no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender, and (ii) except to the extent otherwise expressly agreed by the affected parties, such reinstatement shall not constitute a waiver or release of any claim of any party hereunder arising from such Lender having been a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Dte Energy Co), Credit Agreement (Dte Energy Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the Available unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.21;
(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 14.19.10), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender affected Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Loan or Letters of Credit Outstanding LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters LC Exposure which pertains to the U.S. Letter of Credit Outstanding Outstandings shall be reallocated among the non-Defaulting Lenders having U.S. Revolving Commitments in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures U.S. Revolving Loans plus such Defaulting Lender’s Swingline LC Exposure and in respect of U.S. Letter of Credit Exposure Outstandings does not exceed the total of all non-Defaulting Lenders’ U.S. Revolving Commitments and (y) the conditions set forth in Section 7 4.2 are satisfied at such time;
(ii) all or any part of such LC Exposure which pertains to the Canadian Letter of Credit Outstandings shall be reallocated among the non-Defaulting Lenders having Canadian Revolving Commitments in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Canadian Revolving Loans plus such Defaulting Lender’s LC Exposure in respect of Canadian Letter of Credit Outstandings does not exceed the total of all non-Defaulting Lenders’ Canadian Revolving Commitments and (y) the conditions set forth in Section 4.2 are satisfied at such time
(iii) if the reallocation described in clause clauses (i) or (ii) above cannot, or can only partially, be effected, neither the Borrower Fronting Banks nor any Lender shall within one Business Day following notice by have any obligation to issue new Letters of Credit under this Agreement unless the Administrative Agent (x) first, prepay Borrowers shall have cash collateralized such Defaulting Lender’s Swingline LC Exposure (after giving effect to any partial reallocation pursuant to clause clauses (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (iii) above) in accordance with the procedures set forth in Section 5.2(a2.4(c) for so long as such Letter of Credit LC Exposure is outstanding;
(iiiiv) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c2.33(c), the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 2.21 with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(ivv) to if the extent the Letter of Credit LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c2.33(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) 2.21 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;; or
(vvi) to the extent if any Defaulting Lender’s Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c2.33(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Fronting Bank or any Lender hereunder, all letter of credit fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) 2.22 with respect to such portion of such Letter of Credit Defaulting Lender’s LC Exposure shall instead be payable to the Letter of Credit Issuer such Fronting Bank until such portion of such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized and/or or reallocated;
(vid) so long as any Lender is a Defaulting Lender, the Swingline Lender no Fronting Bank shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or or cash collateral will be provided by the Borrowers in accordance with Section 2.14(c2.33(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 2.14(c)(i2.33(c)(i) (and Defaulting Lenders shall not participate therein); and
(viie) 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 14.8(b) 2.26 but excluding Section 14.72.32(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Applicable 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 Applicable Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Applicable Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender any Fronting Bank hereunder, (iii) third, if so determined by the Administrative Applicable Agent or requested by a Letter of Credit Issuer or Swingline LenderFronting Bank, 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 Applicable Agent, (v) fifth, if so determined by the Administrative Applicable Agent and the BorrowerBorrowers, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, Lenders or a Letter of Credit Issuer or Swingline Lender Fronting Bank as a result of any judgment of a court of competent jurisdiction obtained by any Lender, Lender or such Letter of Credit Issuer or Swingline Lender Fronting Bank 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 Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrower 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 Revolving Credit Loans or drawings reimbursement obligations in respect of Letter of Credits Credit disbursements for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 4.2 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in . In the event that the Administrative Applicable Agent, the Borrower, the Letter of Credit Issuer Borrowers and the Swingline Lender each agree Fronting Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit 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 Applicable Agent 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 (Smurfit Stone Container Corp), Credit Agreement (Smurfit Stone Container 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:
(ai) fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.3 [Commitment Fees];
(bii) the Commitment and Credit Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.111.1 [Modifications, Amendments or Waivers]); provided, provided that any waiverthis clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(ciii) if any Swingline Loan Swing Loans are outstanding or Letters any Letter of Credit Outstanding exists Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of such Swingline Loan the outstanding Swing Loans and Letters Letter of Credit Outstanding Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure Revolving Facility Usage does not exceed the total of all non-Defaulting Lenders’ Commitments Revolving Credit Commitments, and (y) the conditions set forth in Section 7 are satisfied no Potential Default or Event of Default has occurred and is continuing at such time;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, Cash Collateralize for the benefit of such Issuing Lender the Borrower’s obligations corresponding to such Defaulting Lender’s Swingline Exposure Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with a deposit account held at the procedures set forth in Section 5.2(a) Administrative Agent for so long as such Letter of Credit Exposure is Obligations are outstanding;
(iiic) if the Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure Obligations pursuant to this Section 2.14(c)clause (b) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure Obligations during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralizedObligations are Cash Collateralized;
(ivd) to the extent if the Letter of Credit Exposure Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (a) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) 2.9.2 [Letter of Credit Fees] shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;Ratable Share; and
(ve) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Exposure is Obligations are neither cash collateralized reallocated nor reallocated Cash Collateralized pursuant to this Section 2.14(c)clause (a) or (b) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer such Issuing Lender or any other Lender hereunder, all fees that would have otherwise been Letter of Credit Fees payable to such Defaulting Lender under Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized Obligations shall be payable to such Issuing Lender (and not to such Defaulting Lender) until and to the extent that such Letter of Credit Obligations are reallocated and/or reallocated;Cash Collateralized; and
(viiv) so long as any such Lender is a Defaulting Lender, the Swingline Lender PNC shall not be required to fund any Swingline Loan Swing Loans and the Letter of Credit Issuer such Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it such Issuing Lender is satisfied that the related exposure and the Defaulting Lender’s then outstanding Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral Cash Collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.10(iii), and participating interests in any such newly made Swing Loan or any 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 2.14(c)(i2.10(iii)(a) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 . If (i) first, a Bankruptcy Event with respect to the payment a parent company of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunderevent shall continue, or (ii) secondPNC or an Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, pro rataPNC shall not be required to fund any Swing Loan and the Issuing Lenders shall not be required to issue, to the payment of amend or increase any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthunless PNC or such Issuing Lender, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to PNC or such Issuing Lender, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer PNC and the Swingline Issuing Lender each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lenderthe Administrative Agent will so notify the parties hereto, and the Swingline Exposure Ratable Share of the Swing Loans and Letter of Credit Exposure Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentageRatable Share.
Appears in 2 contracts
Samples: Credit Agreement (Koppers Holdings Inc.), Credit Agreement (Koppers Holdings Inc.)
Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.3 [Commitment Fees];
(bii) the Commitment and Credit Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether all any vote of Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to except as required by Section 14.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such 11.1.5 [Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting LenderLenders];
(ciii) if any Swingline Loan Swing Loans are outstanding or Letters any Letter of Credit Outstanding exists Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(iA) all or any part of such Swingline Loan the outstanding Swing Loans and Letters Letter of Credit Outstanding Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure Revolving Facility Usage does not exceed the total of all non-Defaulting Lenders’ Commitments Revolving Credit Commitments, and (y) the conditions set forth in Section 7 are satisfied no Potential Default or Event of Default has occurred and is continuing at such time;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, Cash Collateralize for the benefit of the Issuing Lenders (ratably among the Issuing Lenders) the Borrower’s obligations corresponding to such Defaulting Lender’s Swingline Exposure Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with a deposit account held at the procedures set forth in Section 5.2(a) Administrative Agent for so long as such Letter of Credit Exposure is Obligations are outstanding;
(iiiC) if the Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure Obligations pursuant to this Section 2.14(c)clause (B) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 2.10.2 [Letter of Credit Fees] with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure Obligations during the period such Defaulting Lender’s Letter of Credit Exposure is Obligations are cash collateralized;
(ivD) to the extent if the Letter of Credit Exposure Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (A) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) 2.10.2 [Letter of Credit Fees] shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;Ratable Share; and
(vE) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Exposure is Obligations are neither cash collateralized reallocated nor reallocated Cash Collateralized pursuant to this Section 2.14(c)clause (A) or (B) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees that would have otherwise been Letter of Credit Fees payable to such Defaulting Lender under Section 4.1(b) 2.10.2 [Letter of Credit Fees] with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized Obligations shall be payable to the Issuing Lenders ((ratably among them) and not to such Defaulting Lender) until and to the extent that such Letter of Credit Obligations are reallocated and/or reallocated;Cash Collateralized; and
(viiv) so long as any such Lender is a Defaulting Lender, the Swingline (x) no Issuing Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it such Issuing Lender is satisfied that the related exposure and the Defaulting Lender’s then outstanding Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c)2.13(a)(iii)(B) [Defaulting Lenders], and (y) participating interests in any such newly made Swing Loan or any 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 2.14(c)(i2.13(a)(iii)(A) [Defaulting Lenders] (and such Defaulting Lenders Lender shall not participate therein); and.
(viib) 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 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Swingline Lender and the Swingline Lender each Issuing Lenders agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lenderthe Administrative Agent will so notify the parties hereto, and the Swingline Exposure Ratable Share of the Swing Loans and Letter of Credit Exposure Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentageRatable Share.
Appears in 2 contracts
Samples: Credit Agreement (CNX Resources Corp), Credit Agreement (CNX Midstream Partners LP)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees the Commitment Fee set forth in Section 2.3(a) shall cease to accrue on the Available Commitment of for such Defaulting Lender pursuant to Section 4.1(a);Lender.
(b) the Commitment and Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 14.111.1), provided that any waiver, amendment or modification (i) requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each disproportionately with respect to the other applicable affected Lenders or (ii) that would increase or extend the term of the Commitment of such Defaulting Lender shall require the consent of such Defaulting Lender;.
(c) if any Swingline Loan or Letters of Credit Outstanding exists L/C Obligations exist at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding L/C Obligations shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Commitment Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter Extensions of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one Business Day following notice by the Administrative Agent Agent, (xA) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) secondin the case of Unsecured Letters of Credit, cash collateralize such Defaulting Lender’s Letter of Credit Exposure L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a8 for so long as such L/C Obligations are outstanding or (B) in the case of Secured Letters of Credit, ensure that the Borrowing Base includes an amount of cash equal to or greater than the Defaulting Lender’s L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Letter of Credit Exposure is L/C Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure L/C Obligations pursuant to this Section 2.14(c2.18(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b3.3(a) with respect to such cash collateralized portion of Defaulting Lender’s L/C Obligations during the period such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is L/C Obligations are cash collateralized;
(iv) to if the extent the Letter of Credit Exposure L/C Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c), 2.18(c) then the fees payable to the Lenders pursuant to Section 4.1(a2.3(a) and Section 4.1(b3.3(a) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Commitment Percentages;; and
(v) to the extent if any Defaulting Lender’s Letter of Credit Exposure is L/C Obligations are neither cash collateralized nor reallocated pursuant to this Section 2.14(c2.18(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Lender or any Lender hereunder, all letter of credit fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) 3.3 with respect to such portion of such Letter of Credit Exposure Defaulting Lender’s L/C Obligations shall instead be payable to the Letter of Credit Issuer applicable Issuing Lender until such portion of such Defaulting Lender’s Letter of Credit Exposure is L/C Obligations are cash collateralized and/or reallocated;.
(vid) so long as any Lender is a Defaulting Lender, the Swingline Lender no Applicable Issuing Party shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.18(c), and participating interests or Commitment Shares 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 2.14(c)(i2.18(c)(i) (and Defaulting Lenders shall not participate therein); and.
(viie) 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 14.8(b) 11.7 but excluding Section 14.72.16) 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 Letter of Credit Issuer or Swingline Lender Applicable Issuing Parties hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lenderan Applicable Issuing Party, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest or Commitment Share in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer Lenders or Swingline an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, Lender or such Letter of Credit Issuer or Swingline Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Revolving Credit Loans or drawings reimbursement obligations in respect of a payment made by an Issuing Lender pursuant to a Letter of Credits Credit for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 5.2 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in . In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline each Issuing Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Commitment Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Aspen Insurance Holdings LTD), Credit Agreement (Aspen Insurance Holdings LTD)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(ai) fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.09;
(bii) 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 14.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderhereunder;
(ciii) if any Swingline Loan or Letters of Credit Outstanding exists Swing Line Loans shall be outstanding at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of the unfunded participations in and commitments with respect to such Swingline Loan and Letters of Credit Outstanding Swing Line Loans shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages pro rata Credit Exposures but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures Exposure plus such Defaulting Lender’s Swingline Exposure Lenders’ Loans and Letter of Credit Exposure participations in and commitments with respect to Loans does not exceed the total of all non-Defaulting Lenders’ Lender’s Commitments and no individual Lender’s Credit Exposure exceeds its Commitment and (y) the conditions set forth in Section 7 Article IV are satisfied at such time;.
(iiB) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) firstAgent, prepay such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall outstanding Swing Line Loans that were not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralizedreallocated;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) 2.15 but excluding Section 14.72.16) 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 Letter of Credit Issuer or Swingline Swing Line Lender hereunder, (iii) third, if so determined by to the Administrative Agent funding of any Loan or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future the funding obligations of the Defaulting Lender of any participating interest in any Swingline Swing Line 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, (viv) fifthfourth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (viv) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventhfifth, 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 (viiivi) eighthsixth, if so determined by the Administrative Agent, distributed to the Lenders other than the Defaulting Lender until the ratio of the Credit Exposure of such Lenders to the aggregate outstanding Credit Exposure equals such ratio immediately prior to the Defaulting Lender’s failure to fund any portion of any Loans or participations in Swing Line Loans and (vii) seventh, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided provided, that if such payment is (x) a prepayment of the principal amount of any Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfiedLoans, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Lenders that are not Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in . In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline Swing Line Lender each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Swing Line Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such the Loans in accordance with its Applicable Percentagepro rata share. For purposes of this Section 2.18, “Swing Line Exposure” shall mean, with respect to any Defaulting Lender at any time, such Defaulting Lender’s pro rata share of the aggregate principal amount of all Swing Line Loans outstanding at such time. Nothing contained in the foregoing shall be deemed to constitute a waiver by the Borrower of any of its rights or remedies (whether in equity or at law) against any Lender which fails to fund any of its Loans hereunder at the time or in the amount required to be funded under the terms of this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Nelnet Inc), Credit Agreement (Nelnet 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 pursuant to Section 5.1 shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)Lender;
(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 14.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderhereunder;
(c) if any Swingline Loan Swing Line Loans shall be outstanding or Letters of Credit Outstanding exists any L/C Obligations shall exist at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the unfunded participations in and commitments with respect to such Swingline Loan and Swing Line Loans or Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures Exposure plus such Defaulting Lender’s Swingline Exposure Lenders’ Loans and Letter participations in and commitments with respect to Loans and Letters of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Lender’s Commitments and (y) the conditions set forth in Section 7 12 are satisfied at such time;; provided, that the fees payable to the Lenders on account of the Letters of Credit shall be determined taking into account such reallocation.
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) the outstanding Swing Line Loans that were not reallocated and (y) second, cash collateralize Cash Collateralize such Defaulting Lender’s Letter Pro Rata Share of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a) L/C Obligations for so long as such Letter of Credit L/C Exposure is outstanding;
(iii) if the Borrower cash collateralizes Borrowers Cash Collateralize any portion of such Defaulting Lender’s Letter of Credit L/C Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 5.2 with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit L/C Exposure during the period such Letter of Credit Defaulting Lender’s L/C Exposure is cash collateralized;; and
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent if any Defaulting Lender’s Letter of Credit L/C Exposure is neither cash collateralized nor reallocated not Cash Collateralized pursuant to this Section 2.14(c)clause (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any Lender hereunder, all letter of credit fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) 5.2 with respect to such portion of such Letter of Credit Defaulting Lender’s L/C Exposure shall instead be payable to the Letter of Credit Issuer Issuing Lender until such portion of such Defaulting Lender’s Letter of Credit L/C Exposure is cash collateralized and/or reallocatedCash Collateralized;
(vid) so long as any Lender is a Defaulting Lender, the Swingline Issuing Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend issue or increase modify 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 and by Cash Collateral provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein2.6(c); and
(viie) 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 14.8(b) 7.5 but excluding Section 14.78.7(b)) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer Issuing Bank or Swingline Swing Line Lender hereunder, (iii) third, if so determined by to the Administrative Agent funding of any Revolving Loan or requested by a Letter of Credit Issuer the funding or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender Cash Collateralization of any participating interest in any Swingline Swing Line Loan or Letter of Credit, (iv) fourth, to the funding of any Loan Credit in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (viv) fifthfourth, if so determined by the Administrative Agent and the BorrowerBorrowers, held in such account as cash collateral Cash Collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (viv) sixthfifth, to the payment of any amounts owing to any Borrower or the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender Lenders as a result of any judgment of a court of competent jurisdiction obtained by such Borrower or any Lender, such Letter of Credit Issuer 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 (viiivi) eighthsixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided provided, that if such payment is (x) a prepayment of the principal amount of any Revolving Credit Loans or drawings reimbursement obligations in respect of Letter draws under Letters of Credits for Credit with respect to which a Defaulting the Issuing Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfiedobligations, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Lenders that are not Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations Reimbursement Obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Landauer Inc), Credit Agreement (Landauer 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 Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.10;
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02); provided, provided that any waiverthis clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(c) if any Swingline Loan or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent that (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments and (y) the conditions set forth in Section 7 4.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business 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 Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a2.04(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.04(j) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if the extent the Letter of Credit LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) 2.10 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all commitment fees that otherwise would have otherwise been payable to such Defaulting Lender under Section 4.1(b) (solely with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter Commitment that was utilized by such LC Exposure) and letter of Credit credit fees payable under Section 2.10 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/or reallocated;collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer 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 Borrowers Borrower in accordance with Section 2.14(c2.18(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 2.14(c)(i2.18(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 . If (i) first, a Bankruptcy Event with respect to the payment a parent of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) secondthe 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, pro ratathe Issuing Bank shall not be required to issue, to the payment of amend or increase any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthunless the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Issuing Bank, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; andhereunder.
(de) in In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Samples: Credit Agreement (Fisher Communications Inc), Credit Agreement (Fisher 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:
(ai) fees shall cease to accrue on the Available unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.3 [Commitment Fees];
(bii) the Commitment and Credit Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.112.1 [Modifications, Amendments or Waivers]); provided, provided that any waiverthis clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders or each affected such Lender which affects such Defaulting Lender differently than each other applicable Lender shall require pursuant to the consent terms of such Defaulting Lenderthis Agreement;
(ciii) if any Swingline Loan Swing Loans are outstanding or Letters any Letter of Credit Outstanding exists Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(iA) all or any part of such Swingline Loan the outstanding Swing Loans and Letters Letter of Credit Outstanding Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure Revolving Facility Usage does not exceed the total of all non-Defaulting Lenders’ Commitments Revolving Credit Commitments, and (y) the conditions set forth in Section 7 are satisfied no Potential Default or Event of Default has occurred and is continuing at such time;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, cash collateralize for the benefit of the Issuing Lender the Borrowers’ obligations corresponding to such Defaulting Lender’s Swingline Exposure Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with a deposit account held at the procedures set forth in Section 5.2(a) Administrative Agent for so long as such Letter of Credit Exposure is Obligations are outstanding;
(iiiC) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s Letter of Credit Exposure Obligations pursuant to this Section 2.14(c)clause (B) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 2.7.2 [Letter of Credit Fees] with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure Obligations during the period such Defaulting Lender’s Letter of Credit Exposure is Obligations are cash collateralized;
(ivD) to the extent if the Letter of Credit Exposure Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (A) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) 2.7.2 [Letter of Credit Fees] shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;Ratable Share; and
(vE) to the extent if all or any portion of such Defaulting LenderXxxxxx’s Letter of Credit Exposure is Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (A) or (B) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees that would have otherwise been Letter of Credit Fees payable to such Defaulting Lender under Section 4.1(b) 2.7.2 [Letter of Credit Fees] with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is Obligations shall be payable to the Issuing Lender (and not to such Defaulting Lender) until and to the extent that such Letter of Credit Obligations are reallocated and/or cash collateralized and/or reallocated;collateralized; and
(viiv) so long as any such Lender is a Defaulting Lender, the Swingline Lender PNC shall not be required to fund any Swingline Loan Swing Loans and the Letter of Credit Issuer Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it the Issuing Lender is satisfied that the related exposure and the Defaulting Lender’s then outstanding Letter of Credit Obligations will be one hundred percent (100% %) covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(c6.13(iii), and participating interests in any such newly made Swing Loan or any 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 2.14(c)(i6.13(iii)(A) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 . If (i) first, a Bankruptcy Event with respect to the payment a parent company of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunderevent shall continue, or (ii) secondPNC 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, pro rataPNC shall not be required to fund any Swing Loan and the Issuing Lender shall not be required to issue, to the payment of amend or increase any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthunless PNC or the Issuing Lender, as the case may be, shall have entered into arrangements with the Borrowers or such Lender, satisfactory to PNC or the Issuing Lender, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the BorrowerBorrowing Agent, the Letter of Credit Issuer PNC and the Swingline Issuing Lender each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lenderthe Administrative Agent will so notify the parties hereto, and the Swingline Exposure Ratable Share of the Swing Loans and Letter of Credit Exposure Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentageRatable Share.
Appears in 2 contracts
Samples: Credit Agreement (Mastech Digital, Inc.), Credit Agreement (Mastech Digital, 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:
(ai) fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.3 [Commitment Fees];
(bii) the Commitment and Credit Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.111.1 [Modifications, Amendments or Waivers]); provided, provided that any waiverthis clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(ciii) if any Swingline Loan or Letters Letter of Credit Outstanding exists Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of such Swingline Loan and Letters the outstanding Letter of Credit Outstanding Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure Revolving Facility Usage does not exceed the total of all non-Defaulting Lenders’ Commitments Revolving Credit Commitments, and (y) the conditions set forth in Section 7 are satisfied no Potential Default or Event of Default has occurred and is continuing at such time;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay cash collateralize for the benefit of the Issuing Lender the Borrower’s obligations corresponding to such Defaulting Lender’s Swingline Exposure Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with a deposit account held at the procedures set forth in Section 5.2(a) Administrative Agent for so long as such Letter of Credit Exposure is Obligations are outstanding;
(iiic) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure Obligations pursuant to this Section 2.14(c)clause (b) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure Obligations during the period such Defaulting Lender’s Letter of Credit Exposure is Obligations are cash collateralized;
(ivd) to the extent if the Letter of Credit Exposure Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (a) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) 2.9.2 [Letter of Credit Fees] shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;Ratable Share; and
(ve) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Exposure is Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (a) or (b) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees that would have otherwise been Letter of Credit Fees payable to such Defaulting Lender under Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is Obligations shall be payable to the Issuing Lender (and not to such Defaulting Lender) until and to the extent that such Letter of Credit Obligations are reallocated and/or cash collateralized and/or reallocated;collateralized; and
(viiv) so long as any such Lender is a Defaulting Lender, the Swingline Issuing Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it the Issuing Lender is satisfied that the related exposure and the Defaulting Lender’s then outstanding Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.10(iii), 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 2.14(c)(i2.10(iii)(a) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 . If (i) first, a Bankruptcy Event with respect to the payment a parent company of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunderevent shall continue, or (ii) secondthe 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, pro ratathe Issuing Lender shall not be required to issue, to the payment of amend or increase any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthunless the Issuing Lender shall have entered into arrangements with the Borrower or such Lender, satisfactory to the funding of Issuing Lender to defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Issuing Lender each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lenderthe Administrative Agent will so notify the parties hereto, and the Swingline Exposure and Ratable Share of the Letter of Credit Exposure Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentageRatable Share.
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:
(ai) fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.3 [Commitment Fees];
(bii) the Commitment and Credit Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.111.1 [Modifications, Amendments or Waivers]); provided, provided that any waiverthis clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(ciii) if any Swingline Loan Swing Loans are outstanding or Letters any Letter of Credit Outstanding exists Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of such Swingline Loan the outstanding Swing Loans and Letters Letter of Credit Outstanding Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure Revolving Facility Usage does not exceed the total of all non-Defaulting Lenders’ Commitments and Revolving Credit Commitments, (y) the conditions set forth in Section 7 are satisfied such reallocation does not, as to any non-Defaulting Lender, cause such non-Defaulting Lender’s Revolving Credit Exposure to exceed its Commitment, and (z) no Default or Event of Default has occurred and is continuing at such time;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, cash collateralize for the benefit of the applicable Issuing Bank the Borrower’s obligations corresponding to such Defaulting Lender’s Swingline Exposure Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with a deposit account held at the procedures set forth in Section 5.2(a) Administrative Agent for so long as such Letter of Credit Exposure is Obligations are outstanding;
(iiic) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure Obligations pursuant to this Section 2.14(c)clause (b) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure Obligations during the period such Defaulting Lender’s Letter of Credit Exposure is Obligations are cash collateralized;
(ivd) to the extent if the Letter of Credit Exposure Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (a) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) 2.9.2 [Letter of Credit Fees] shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;Ratable Share; and
(ve) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Exposure is Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (a) or (b) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all fees that would have otherwise been Letter of Credit Fees payable to such Defaulting Lender under Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is Obligations shall be payable to the applicable Issuing Bank (and not to such Defaulting Lender) until and to the extent that such Letter of Credit Obligations are reallocated and/or cash collateralized and/or reallocatedcollateralized;
(viiv) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan Swing Loans and the Letter of Credit Issuer no Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it such Issuing Bank is satisfied that the related exposure and the Defaulting Lender’s then outstanding Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.10(iii), and participating interests in any such newly made Swing Loan or any 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 2.14(c)(i2.10(iii)(a) (and such Defaulting Lenders Lender shall not participate therein); and
(viiv) any amount payable to such Defaulting Lender hereunder (whether on account payment of principal, interest, fees or otherwise and including any amount that would otherwise be payable other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to such Section 9.2.5 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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, 9.2.3 shall be applied at such time or times as may be determined by the Administrative Agent (i) as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer any Issuing Bank or Swingline Lender hereunder, (iii) ; third, if so determined by to cash collateralize the Administrative Agent or requested by a Borrower’s obligations corresponding to such Defaulting Lender’s Letter of Credit Issuer Obligations in accordance with this Section; fourth, as the Borrower may request (so long as no Default or Swingline Lender, to be held in such account as cash collateral for future funding obligations Event of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourthDefault exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) ; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such account as cash collateral for Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize the Borrower’s obligations corresponding to such Defaulting Lender’s Letter of the Defaulting Lender Credit Obligations with respect to future Letters of any Revolving Credit Loans issued under this Agreement, (vi) in accordance with this Section; sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer the Issuing Banks or Swingline Lender Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer the Issuing Banks or Swingline Lender Lenders against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this AgreementAgreement or under any other Loan Document; seventh, (vii) seventhso long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, Agreement or under any other Loan Document; and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is (x) a prepayment payment of the principal amount of any Revolving Credit Loans or drawings LC Disbursements in respect of Letter of Credits for which a such Defaulting Lender has not fully funded its participation obligations appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 7 are satisfied7.2 were satisfied or waived, such payment shall be applied solely to prepay pay the Revolving Credit Loans of, and reimbursement obligations LC Disbursements owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the prepayment payment of any Revolving Credit LoansLoans of, or reimbursement obligations LC Disbursements owed to, any such Defaulting Lender until such time as all Loans and funded and unfunded participations in the Borrower’s obligations corresponding to such Defaulting Lender; and
’s LC Exposure and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments without giving effect to clause (d) below. 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 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(i) a Bankruptcy Event or a Bail-In Action with respect to a parent company of any Lender shall occur following the date hereof and for so long as such event shall continue, or (ii) the Swingline Lender or an Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swing 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 Letter of Credit Issuer Swingline Lender and the Swingline Lender each Issuing Banks agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lenderthe Administrative Agent will so notify the parties hereto, and the Swingline Exposure Ratable Share of the Swing Loans and Letter of Credit Exposure Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentageRatable 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) 2.6.1 fees shall cease to accrue on the Available unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a)5.1;
(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 14.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
(c) 2.6.2 if any Swingline Loan or Letters of Credit Outstanding exists are outstanding at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Swingline Loan and the Defaulting Lender’s obligation to participate in Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares as determined pursuant to clause (a) of the definition of “Pro Rata Share” but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures Revolving Outstandings plus such Defaulting Lender’s Swingline Exposure and Letter obligation to participate in Letters of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 12.2 are satisfied at such time;
(iiB) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower Company shall within one Business Day following notice by the Administrative Agent (x) first, prepay Cash Collateralize such Defaulting Lender’s Swingline Exposure obligation to participate in Letters of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with the procedures set forth in Section 5.2(a) 2.3.1 for so long as such Letter obligation to participate in Letters of Credit Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes Company Cash Collateralizes any portion of such Defaulting Lender’s Letter obligation to participate in Letters of Credit Exposure pursuant to this Section 2.14(c)2.6.2, the Borrower Company shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 5.2 with respect to such cash collateralized portion Defaulting Lender’s obligation to participate in Letters of Credit during the period such Defaulting Lender’s Letter obligation to participate in Letters of Credit Exposure during the period such Letter of Credit Exposure is cash collateralizedCash Collateralized;
(ivD) if the obligation to the extent the Letter participate in Letters of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)2.6.2, then the fees payable to the Lenders pursuant to Section 4.1(a) 5.1 and Section 4.1(b) 5.2 shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;Pro Rata Shares (as determined pursuant to clause (a) of the definition of “Pro Rata Share”); and
(vE) to the extent if any Defaulting Lender’s Letter obligation to participate in Letters of Credit Exposure is neither cash collateralized Cash Collateralized nor reallocated pursuant to this Section 2.14(c)2.6.2, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Lender or any Lender hereunder, all letter of credit fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) 5.2 with respect to such portion of such Letter Defaulting Lender’s obligation to participate in Letters of Credit Exposure shall instead be payable to the Letter applicable Issuing Lender until such obligation to participate in Letters of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized Cash Collateralized and/or reallocated;; and
(vi) 2.6.3 so long as any Lender is a Defaulting Lender, the Swingline no Issuing Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Company in accordance with Section 2.14(c)2.6.2, 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 2.14(c)(i2.6.2(A) (and Defaulting Lenders shall not participate therein); and;
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) 2.6.4 in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Company and the Swingline Lender applicable Issuing Lender(s) each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease the obligations to be a Defaulting Lender, and the Swingline Exposure and Letter participate in Letters of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentagePro Rata Share (as determined pursuant to clause (a) of the definition of “Pro Rata Share”);
2.6.5 any amount payable to a Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 7.5) shall, in lieu of being distributed to such Defaulting Lender, be retained by Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Issuing Lender(s), (iii) third, to the funding of any Revolving Loan or the funding or cash collateralization of any participating interest in any Letter of Credit in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent, (iv) fourth, if so determined by Administrative Agent and the Company, 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 Company or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Company or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (vi) sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of draws under Letters of Credit with respect to which the Issuing Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 12.2 are satisfied, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all Revolving Lenders that are not Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender; and
2.6.6 no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver, consent or any other action the Lenders or the Required Lenders have taken or may take hereunder (including any consent to any amendment or waiver pursuant to Section 15.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each directly affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such 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 Available 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 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 14.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding LC Exposure exists at the time a Lender becomes is a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (xi) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect or, if agreed by the Swingline Lender, cash collateralize the Swingline Exposure of the Defaulting Lender on terms satisfactory to any partial reallocation pursuant to clause (i) above) the Swingline Lender and (yii) second, cash collateralize such Defaulting Lender’s 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 5.2(a2.05(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iiic) 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 it is satisfied that cash collateral will be provided by the Borrower in accordance with Section 2.20(a); and
(d) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (b) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.11(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its 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) the facility fees shall cease continue to accrue on the Available amount of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a) only to the extent of the Revolving Credit Exposure of such Defaulting Lender (excluding any portion thereof constituting Swingline Exposure or LC Exposure of such Defaulting Lender that is subject to reallocation under clause (c)(i) below);
(b) the Commitment Commitments and Revolving Credit Exposure Exposures of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.111.02), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 11.02, require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposures and LC Exposures of such Defaulting Lender (other than (A) any portion of such Swingline Loan Exposure (1) referred to in clause (b) of the definition of the terms Tranche One Swingline Exposure or Tranche Two Swingline Exposure or (2) with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and Letters (B) any portion of Credit Outstanding such LC Exposure attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(d) and 2.05(e)) shall be reallocated among the non-Defaulting Tranche One Lenders or non-Defaulting Tranche Two Lenders, as applicable, in accordance with proportion to their respective Applicable Tranche One Percentages or Tranche Two Percentages, as applicable, but only to the extent that (xA) the sum of all non-Defaulting Tranche One Lenders’ Tranche One Revolving Credit Exposures plus such Defaulting Lender’s Tranche One Swingline Exposure and Letter of Credit Tranche One LC Exposure does not exceed the total of all non-Defaulting Tranche One Lenders’ Tranche One Commitments and (yB) the conditions set forth in Section 7 are satisfied sum of all non-Defaulting Tranche Two Lenders’ Tranche Two Revolving Credit Exposures plus such Defaulting Lender’s Tranche Two Swingline Exposure and Tranche Two LC Exposure does not exceed the total of all non-Defaulting Tranche Two Lenders’ Tranche Two Commitments; provided that this clause (c)(i) shall not apply if, at such timethe time the reallocation provided for herein would otherwise have been made, an Event of Default has occurred and is continuing;
(ii) if the reallocation reallocations described in clause (i) above cannot, or can only partially, be effected, the Borrower shall Borrowers shall, within one Business 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), (x) first, prepay the portion of such Swingline Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated and (y) second, cash collateralize for the benefit of the Issuing Banks the Borrowers’ obligations corresponding to the portion of such Defaulting Lender’s Letter of Credit LC Exposure (after giving effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) above) that has not been reallocated, such cash collateralization to be in accordance with the procedures set forth in Section 5.2(a2.05(i) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.12(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if the extent the Letter of Credit LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.12(b) shall be adjusted in accordance with the amounts of such LC Exposure allocated to the non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Swingline Exposure that is subject to reallocation pursuant to clause (i) above is neither cash collateralized reallocated nor reallocated reduced pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Swingline Lenders or any other Lender hereunder, all facility fees that otherwise would have otherwise been payable under Section 2.12(a) to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit its Swingline Exposure shall instead be payable to the Letter of Credit Issuer applicable Swingline Lender until and to the extent that such Swingline Exposure is reallocated and/or reduced to zero; and
(vi) if all or any portion of such Defaulting Lender’s Letter LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Issuing Banks or any other Lender hereunder, all facility fees that otherwise would have been payable under Section 2.12(a) to such Defaulting Lender with respect to such portion of its LC Exposure, and all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure, shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such portion of the LC Exposure of such Defaulting Lender attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless it is satisfied that the Defaulting Lender’s Swingline Exposure and LC Exposure will be 100% reallocated to the non-Defaulting Lenders and/or cash collateralized as provided above, and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders of the applicable Tranche in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein). If (i) a Bankruptcy Event or a Bail-In Action with respect to a parent entity of any Lender shall occur following the Restatement Effective Date and for so long as such event shall continue or (ii) a Swingline Lender or an Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that such Swingline Lender or such Issuing Bank, as the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by case may be, shall have entered into arrangements with the Borrowers in accordance with Section 2.14(c)or such Lender, 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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable reasonably satisfactory to such Defaulting Swingline Lender hereunder (whether on account of principalor such Issuing Bank, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) shall, in lieu of being distributed to such Defaulting Lender, be retained by as the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as case may be determined by the Administrative Agent (i) firstbe, to the payment of eliminate any amounts owing by such Defaulting Lender risk to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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 it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the BorrowerCompany, the Letter of Credit Issuer and the each Swingline Lender and each Issuing Bank shall agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure Exposures and Letter of Credit Exposure LC Exposures of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitments and on such date such Lender shall purchase at par such of the Tranche One Loans and/or Tranche Two Loans of the other Lenders (other than Lenders, and such funded participations in Swingline Loans) Loans and LC Disbursements, as the Administrative Agent shall determine may to be necessary in order for such Lender the Lenders to hold such Loans and funded participations in accordance with its Applicable Percentagetheir applicable Tranche Percentages.
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 the Revolving Commitment Fees shall cease to accrue on the Available unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a)Lender;
(b) the Revolving Commitment and Credit the Revolving Exposure of such Defaulting Lender shall not be included in determining whether all the Required Lenders or the Required any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.110.02), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 10.02, require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan or Letters of Credit Outstanding LC Exposure exists at the time a any Revolving Lender becomes a Defaulting Lender Lender, then:
(i) all or any part the LC Exposure of such Swingline Loan Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.20(d) and Letters of Credit Outstanding 2.20(f)) shall be reallocated among the nonNon-Defaulting Revolving Lenders in accordance with their respective Applicable Percentages but only to the extent (x) that the sum of all nonNon-Defaulting Revolving Lenders’ Credit Revolving Exposures plus such Defaulting Lender’s Swingline LC Exposure and Letter of Credit Exposure (excluding the portion thereof referred to above) does not exceed the total sum of all nonNon-Defaulting Revolving Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeRevolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following written notice by the Administrative Agent (x) first, prepay cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s Swingline LC Exposure (after giving effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) above) and (y) second, cash collateralize that has not been reallocated as set forth in such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a2.20(n) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower Borrowers shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(b2.09(c) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period for so long as such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if any portion of the extent the Letter of Credit LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(aSections 2.09(a) and Section 4.1(b2.09(c) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentages;reallocation; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure that is subject to reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all participation fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.09(c) with respect to such portion of such Letter of Credit its LC Exposure shall instead be payable to the Letter Issuing Banks (and allocated among them ratably based on the amount of Credit Issuer until such portion of the LC Exposure of such Defaulting Lender’s Letter Lender attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender no Issuing Bank shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless unless, in each case, it is satisfied that the related exposure and such Defaulting Lender’s then outstanding LC Exposure will be 100% fully covered by the Revolving Commitments of the nonNon-Defaulting Revolving Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(c)clause (c) above, and participating interests in any such newly issued issued, amended, renewed or increased extended Letter of Credit or newly made Swingline Loan shall will be allocated among nonthe Non-Defaulting Revolving Lenders in a manner consistent with Section 2.14(c)(iclause (c)(i) above (and such Defaulting Lenders Lender shall not participate therein); and
. In the event that (viix) a Bankruptcy Event with respect to a Lender Parent of a Revolving Lender shall have occurred following the Effective Date and for so long as such Bankruptcy Event shall continue or (y) any amount payable Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Revolving Lender commits to such Defaulting Lender hereunder (whether on account of principalextend credit, interestno Issuing Bank shall be required to issue, fees amend, renew or otherwise and including extend any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthunless, in each case, such Issuing Bank shall have entered into arrangements with the Company and any other applicable Borrower or such Revolving Lender satisfactory to the funding of such Issuing Bank to defease any Loan risk to it in respect of which such Defaulting Revolving Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Company and the Swingline Lender each Issuing Bank each agree that a Defaulting Lender that is a Revolving Lender has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may to be necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage, and such Revolving Lender shall thereupon cease to be a Defaulting Lender (but shall not be entitled to receive any Revolving Commitment Fees accrued during the period when it was a Defaulting Lender, and all amendments, waivers or modifications effected without its consent in accordance with the provisions of Section 10.02 and this Section during such period shall be binding on it). The rights and remedies against, and with respect to, a Defaulting Lender under this Section are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent, any Issuing Bank, any Lender or the Borrowers may at any time have against, or with respect to, such Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Trimble Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any 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 Available Commitment of such Defaulting Lender pursuant to Section 4.1(a2.04(a);
(b) the Commitment unpaid principal amount of Advances and the Letter of Credit Exposure of such Defaulting Lender shall not be included in determining whether all the Required Lenders or the Required Super-Majority Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.18.01); provided, provided that any waiver, amendment or modification requiring this clause (b) shall not apply to the consent vote of all Lenders or each affected Lender which affects such a Defaulting Lender differently than each in the case of an amendment, waiver or other applicable Lender shall require modification described in Section 8.01 for which the consent of such Defaulting LenderLender or each Lender directly and adversely affected thereby is required;
(c) if any Swingline Loan or Letters Letter of Credit Outstanding Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters the Letter of Credit Outstanding Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares but only to the extent that (x) the sum of all non-Defaulting Lenders’ Credit Exposures unpaid principal amount of Advances plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments as in effect at the time of such reallocation and (y) the conditions set forth in Section 7 3.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business 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) secondAgent, cash collateralize for the benefit of the Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Lender’s Letter of Credit Exposure (after giving effect in an amount equal to any partial reallocation pursuant to clause (i) above) the aggregate amount of the unreallocated obligations of such Defaulting Lender in accordance with the procedures set forth in Section 5.2(a2.03(h)(i) for so long as such Letter of Credit Exposure is outstanding; provided that neither any such reallocation (partial or otherwise) described in clause (i) above or this clause (ii), nor any payment by a non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Agent, the Issuing Banks or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a non-Defaulting Lender;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.04(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) to the extent if the Letter of Credit Exposure Exposures of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.04(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;Pro Rata Shares; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Banks or any other Lender hereunder, all facility fees that otherwise would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.04(a) (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such Letter of Credit Exposure) and Letter of Credit participation fees payable under Section 2.04(b)(i) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure shall be payable to the Issuing Banks, ratably based on the portion of such Letter of Credit Exposure attributable to Letters of Credit issued by each Issuing Bank, until and to the extent that such Letter of Credit Exposure is reallocated and/or cash collateralized and/or reallocated;pursuant to clause (i) or (ii) above; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender no Issuing Bank shall not be required to fund any Swingline Loan and the Letter of Credit Issuer 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 Letter of Credit Exposure will be 100% covered by the Letter of Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.19(c)(ii), 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 2.14(c)(i2.19(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in . If a segregated account and, subject Bankruptcy Event with respect to any applicable requirements of lawLender Parent shall occur following the date hereof and for so long as such event shall continue, no Issuing Bank shall be applied at such time required to issue, amend or times as may be determined by the Administrative Agent (i) first, to the payment of increase 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthunless such Issuing Bank shall have entered into arrangements with the Borrower or such Lender, reasonably satisfactory to the funding of Issuing Bank to defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline Lender each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure Exposures of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Letter of Credit Commitment and on such date such Lender shall purchase at par such of the Loans Advances 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 Advances in accordance with its Applicable PercentagePro Rata Share, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender; and provided further that no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim the Borrower, the Agent, the Issuing Banks or any other Lender may have 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 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 Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.03(a);
(b) the Commitment and Outstanding 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 14.1)8.01, provided that any waiver, amendment or modification requiring other than those which require the consent of all Lenders or of each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender);
(c) if any Swingline Loan or Letters of Credit Outstanding exists LC Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(i) so long as no Default or Event of Default has occurred and is continuing, all or any part of such Swingline Loan and Letters of Credit Outstanding the LC Obligations shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures LC Obligations plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure LC Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at sum of all non-Defaulting Lenders’ Outstanding Credit Exposure plus such timeDefaulting Lender’s LC Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) firstAgent, prepay cash collateralize for the benefit of the LC Issuers only the Borrower’s obligations corresponding to such Defaulting Lender’s Swingline Exposure LC Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) by depositing funds in accordance with the procedures set forth in Section 5.2(a) Facility LC Collateral Account for so long as such Letter of Credit Exposure is LC Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure LC Obligations pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) Facility Fees or LC Fees with respect to such cash collateralized portion of Defaulting Lender’s LC Obligations during the period such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is LC Obligations are cash collateralized;
(iv) to if the extent the Letter of Credit Exposure LC Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees LC Fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.03(c) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;Pro Rata Shares; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Exposure LC Obligations is neither cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer LC Issuers or any Lender hereunder, all fees Facility Fees that otherwise would have otherwise been payable to such Defaulting Lender under pursuant to Section 4.1(b2.03(a) (solely with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is Commitment that was utilized by such LC Obligations) and LC Fees payable to such Defaulting Lender pursuant to Section 2.03(c) with respect to such Defaulting Lender’s LC Obligations shall be payable to the LC Issuers until such LC Obligations are cash collateralized and/or reallocated;
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender no LC Issuer shall not be required to fund issue or Modify any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of CreditFacility LC, 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 Borrower in accordance with Section 2.14(c2.18(c), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan Modified Facility LC shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.14(c)(i2.18(c)(i) (and Defaulting Lenders shall not participate therein); and;
(viie) any amount payable the Borrower may, subject to the requirements of Sections 8.04 and 8.07, substitute for such Defaulting Lender hereunder (whether on account another financial institution, which financial institution shall be an Eligible Assignee and shall assume the Commitments of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to and purchase the Outstanding Credit Exposures held by such Defaulting Lender in accordance with Section 14.8(b8.07; provided, however, that (i) but excluding Section 14.7no Default shall have occurred and be continuing, (ii) shall, the Borrower shall have satisfied all of its obligations in lieu of being distributed connection with the Loan Documents with respect to such Defaulting Lender, be retained by the Administrative Agent in and (iii) if such assignee is not a segregated account and, subject to any applicable requirements of law, be applied at Lender,
(A) such time or times as may be determined by the Administrative Agent (i) first, assignee is acceptable to the payment Agent and (B) the Borrower shall have paid the Agent a $3,500 administrative fee;
(f) to the extent the Agent receives any payments or other amounts for the account of any amounts owing by a Defaulting Lender under the Loan Documents, such Defaulting Lender shall be deemed to have requested that the Administrative Agent hereunder, (ii) second, pro rata, use such payment or other amount to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or Swingline Lender against such Defaulting Lender as a result of fulfill such Defaulting Lender’s breach previously unsatisfied obligations to fund a Revolving Credit Advance or any other unfunded payment obligation 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 AgreementSection 2.02(d), and 2.12(e), 2.16(d) or 7.05;
(viiig) eighth, to such Defaulting no Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely deemed to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior have consented to being applied increase its Commitment pursuant to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting LenderSection 2.04(c) unless that Lender shall have affirmatively given consent in accordance with that Section; and
(dh) for the avoidance of doubt, the Borrower shall retain and reserve its other rights and remedies respecting each Defaulting Lender. If (i) a Bankruptcy Event with respect to a parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) any 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, such LC Issuer shall not be required to Modify any Facility LC, unless such LC Issuer shall have entered into arrangements with the Borrower or such Lender, reasonably satisfactory to such LC Issuer to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline Lender LC Issuers each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders LC Obligations shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par on a ratable basis such of the Loans Outstanding Credit Exposures 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 Outstanding Credit Exposures in accordance with its Applicable PercentagePro Rata Share, whereupon such Lender shall cease to be a Defaulting Lender. For the purposes of clarity, in the event any Defaulting Lender is reinstated as a non-Defaulting Lender in accordance with the terms hereof (i) no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender, and (ii) except to the extent otherwise expressly agreed by the affected parties, such reinstatement shall not constitute a waiver or release of any claim of any party hereunder arising from such Lender having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Dte Energy Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.03(a);
(b) the Commitment and Outstanding 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 14.1)8.01, provided that any waiver, amendment or modification requiring other than those which require the consent of all Lenders or of each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender);
(c) if any Swingline Loan or Letters of Credit Outstanding exists LC Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(i) so long as no Default or Event of Default has occurred and is continuing, all or any part of such Swingline Loan and Letters of Credit Outstanding the LC Obligations shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures LC Obligations plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure LC Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) firstAgent, prepay cash collateralize for the benefit of the LC Issuers only the Borrower’s obligations corresponding to such Defaulting Lender’s Swingline Exposure LC Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) by depositing funds in accordance with the procedures set forth in Section 5.2(a) Facility LC Collateral Account for so long as such Letter of Credit Exposure is LC Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure LC Obligations pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) Facility Fees or LC Fees with respect to such cash collateralized portion of Defaulting Lender’s LC Obligations during the period such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is LC Obligations are cash collateralized;
(iv) to if the extent the Letter of Credit Exposure LC Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees LC Fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.03(c) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;Pro Rata Shares; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Exposure LC Obligations is neither cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer LC Issuers or any Lender hereunder, all fees Facility Fees that otherwise would have otherwise been payable to such Defaulting Lender under pursuant to Section 4.1(b2.03(a) (solely with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is Commitment that was utilized by such LC Obligations) and LC Fees payable to such Defaulting Lender pursuant to Section 2.03(c) with respect to such Defaulting Lender’s LC Obligations shall be payable to the LC Issuers until such LC Obligations are cash collateralized and/or reallocated;
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender no LC Issuer shall not be required to fund issue or Modify any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of CreditFacility LC, 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 Borrower in accordance with Section 2.14(c2.18(c), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan Modified Facility LC shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.14(c)(i2.18(c)(i) (and Defaulting Lenders shall not participate therein); and;
(viie) any amount payable the Borrower may, subject to the requirements of Sections 8.04 and 8.07, substitute for such Defaulting Lender hereunder (whether on account another financial institution, which financial institution shall be an Eligible Assignee and shall assume the Commitments of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to and purchase the Outstanding Credit Exposures held by such Defaulting Lender in accordance with Section 14.8(b8.07; provided, however, that (i) but excluding Section 14.7no Default shall have occurred and be continuing, (ii) shall, the Borrower shall have satisfied all of its obligations in lieu of being distributed connection with the Loan Documents with respect to such Defaulting Lender, be retained by the Administrative Agent in and (iii) if such assignee is not a segregated account andLender, subject to any applicable requirements of law, be applied at (A) such time or times as may be determined by the Administrative Agent (i) first, assignee is acceptable to the payment Agent and (B) the Borrower shall have paid the Agent a $3,500 administrative fee;
(f) to the extent the Agent receives any payments or other amounts for the account of any amounts owing by a Defaulting Lender under the Loan Documents, such Defaulting Lender shall be deemed to have requested that the Administrative Agent hereunder, (ii) second, pro rata, use such payment or other amount to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or Swingline Lender against such Defaulting Lender as a result of fulfill such Defaulting Lender’s breach previously unsatisfied obligations to fund a Revolving Credit Advance or any other unfunded payment obligation 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 AgreementSection 2.02(d), and 2.12(e), 2.16(d) or 7.05;
(viiig) eighth, to such Defaulting no Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely deemed to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior have consented to being applied increase its Commitment pursuant to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting LenderSection 2.04(c) unless that Lender shall have affirmatively given consent in accordance with that Section; and
(dh) for the avoidance of doubt, the Borrower shall retain and reserve its other rights and remedies respecting each Defaulting Lender. If (i) a Bankruptcy Event with respect to a parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) any 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, such LC Issuer shall not be required to Modify any Facility LC, unless such LC Issuer shall have entered into arrangements with the Borrower or such Lender, reasonably satisfactory to such LC Issuer to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline Lender LC Issuers each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders LC Obligations shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par on a ratable basis such of the Loans Outstanding Credit Exposures 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 Outstanding Credit Exposures in accordance with its Applicable PercentagePro Rata Share. For purposes of clarity, in the event any Defaulting Lender is reinstated as a non-Defaulting Lender in accordance with the terms hereof (i) no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender, and (ii) except to the extent otherwise expressly agreed by the affected parties, such reinstatement shall not constitute a waiver or release of any claim of any party hereunder arising from such Lender having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Dte Energy Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) facility fees shall cease to accrue on the Available unused amount 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 the Required Lenders or the Required any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all so long as no Default or any part Event of Default has occurred and is continuing, the LC Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) that the sum of all nonNon-Defaulting Lenders’ Credit Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total sum of all nonNon-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) firstPaying Agent, prepay cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s Swingline LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 5.2(a2.05(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(b2.11(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period for so long as such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if any portion of the extent the Letter of Credit LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(aSections 2.11(a) and Section 4.1(b2.11(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentages;reallocation; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have otherwise been payable to such Defaulting Lender under Section 4.1(b) (solely with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter Commitment utilized by such LC Exposure) and participation fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender no Issuing Bank shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% fully covered by the Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.22(c), and participating interests in any such newly issued issued, amended, reviewed or increased extended Letter of Credit or newly made Swingline Loan shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.14(c)(i2.22(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
. In the event that (viix) a Bankruptcy Event with respect to a Lender Parent shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) any amount payable 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 such Defaulting Lender hereunder (whether on account of principalextend credit, interestno Issuing Bank shall be required to issue, fees amend, renew or otherwise and including extend any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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, unless such Issuing Bank shall have entered into arrangements with the Borrower or such Lender satisfactory to the funding of such Issuing Bank to defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Paying Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline Lender each Issuing Bank each agree (provided that the Borrower’s agreement shall not be required if an Event of Default has occurred and is continuing) that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit 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 Paying 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 (Macy's, Inc.)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the Available unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);
(b) the Revolving Commitment and Credit Revolving Exposure of such Defaulting Lender shall not be included in determining whether all the Required Lenders or the Required any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan or Letters of Credit Outstanding LC Exposure exists at the time a such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part the LC Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but only to the extent (x) that such reallocation does not cause the sum Aggregate Revolving Exposure of all nonany Non-Defaulting Lenders’ Credit Exposures plus Lender to exceed such Non-Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeRevolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s Swingline LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 5.2(a2.05(i) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(b2.12(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period for so long as such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if any portion of the extent the Letter of Credit LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(aSections 2.12(a) and Section 4.1(b2.12(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentages;reallocation; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all participation fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.12(b) with respect to such portion of such Letter of Credit Defaulting Lender’s LC Exposure shall instead be payable to the Letter of Credit Issuer until such portion Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s Letter LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Revolving Lender is a Defaulting Lender, the Swingline Lender no Issuing Bank shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless in each case it is reasonably satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure, as applicable, will be 100% fully covered by the Revolving Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.20(c), and participating interests in any such newly issued issued, amended, reviewed or increased extended Letter of Credit or newly made Swingline Loan shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.14(c)(i2.20(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in . In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline Lender each Issuing Bank each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender (a “Restored Lender”), then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment reallocated in accordance with their Applicable Percentages and on such date such Restored Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Restored Lender to hold such Loans in accordance with its Applicable Percentage (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated including the Revolving Commitment of such Restored Lender but disregarding the Revolving Commitments of the Defaulting Lenders at such time).
Appears in 1 contract
Samples: Credit Agreement (Costar Group Inc)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.10(a);
(b) the Commitment and Credit Exposure of such Defaulting Lender shall not be included in determining whether all the Majority Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02); provided, that, except as otherwise provided that any waiverin Section 9.02, amendment this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure or LC Exposure (other than (A) the portion of such Swingline Loan Exposure referred to in clause (b) of the definition of such term and Letters (B) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(d) or (e)) of Credit Outstanding such Defaulting Lender shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the non-Defaulting Lenders in accordance with their respective Applicable Percentages (for the purposes of such reallocation, such Defaulting Lender’s Commitment shall be disregarded in determining the non-Defaulting Lenders’ respective Applicable Percentages), but only to the extent that (xX) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments Commitments, (Y) after giving effect to any such reallocation, no non-Defaulting Lender’s Credit Exposure shall exceed such non-Defaulting Lender’s Commitment and (yZ) the conditions set forth in Section 7 are satisfied no Default or Event of Default has occurred and is continuing at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one three (3) Business Day Days following written 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) secondsecond cash collateralize, cash collateralize for the benefit of the applicable Issuing Banks, the Borrower’s obligations corresponding to such Defaulting Lender’s 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 5.2(a2.04(j) for so long as such Letter of Credit Defaulting Lender’s LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(b2.10(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if any portion of the extent the Letter of Credit LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a2.10(a) and Section 4.1(b2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;Percentages after giving effect to such reallocation; and 860627.02-LACSR02A - MSW
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all participation fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.10(b) with respect to such portion of such Letter of Credit Defaulting Lender’s LC Exposure shall instead be payable to the Letter of Credit Issuer until such applicable Issuing Banks, ratably based on the portion of such Defaulting Lender’s Letter LC Exposure attributable to Letters of Credit issued by each such Issuing Bank, until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;pursuant to clause (i) or (ii) above; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer no 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 Borrowers Borrower in accordance with Section 2.14(c2.18(c), and Swingline Exposure related to any such newly made Swingline Loan 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 2.14(c)(i2.18(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and.
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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, a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent shall occur following the payment of any amounts owing by date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunderor 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, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, Lender shall not be required to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, (iv) fourthunless the Swingline Lender or such Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swingline Lender or Issuing Bank, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender and each Issuing Bank agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure LC Exposures of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage. The rights and remedies against, and with respect to, a Defaulting Lender under this Section 2.18 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Lender, each Issuing Bank, the Borrower or any other Loan Party may at any time have against, or with respect to, such Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Credit Agreement to the contrary, if any Lender becomes a Defaulting LenderLender hereunder (as determined by the Administrative Agent or, in the case of clause (d) below, any applicable L/C Issuer), then the following provisions shall apply for so long as such Defaulting Lender is a Defaulting Lender:
(a) the Administrative Agent (or the applicable L/C Issuer, as the case may be) shall promptly notify the Parent Borrower and each Lender that such Lender is a Defaulting Lender for purposes of this Credit Agreement;
(b) fees under Section 2.09(a) shall cease to accrue on the Available Commitment of such Defaulting Lender (except to the extent reallocated pursuant to Section 4.1(a2.16(e));
(bc) the Commitment Commitments and Credit Exposure Loans of such Defaulting Lender shall not be included in determining disregarded for all purposes of any determination of whether all the Required Lenders, Required Revolving Lenders, Required Dollar Revolving Lenders, Required L/C Lenders, Required Limited Currency Revolving Lenders, Required Multicurrency Revolving Lenders, Required Term A-12 Lenders or the Required Term B-12 Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 14.111.01), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
(cd) if any Swingline Loan or Letters Letter of Credit Outstanding exists is outstanding at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation notice described in clause (ia) above cannot, or can only partially, be effectedis provided, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (xi) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) Loan and (yii) second, cash collateralize such Defaulting Lender’’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) L/C Obligations in accordance with Section 2.03(a)(ii)(F) and on terms similar to the procedures set forth in Section 5.2(a2.03(g) for so long as such Letter L/C Obligations are outstanding; provided that (A) to the extent the sum of Credit the total Dollar Revolving Obligations (other than any Dollar Revolving Obligations constituting outstanding Dollar Revolving Loans made by any Defaulting Lender but including each Defaulting Lender’’s Dollar Facility L/C Obligations and Swingline Exposure) does not exceed the sum of the total Dollar Revolving Commitments (excluding the Dollar Revolving Commitment of any Defaulting Lender except to the extent of any outstanding Dollar Revolving Loans of such Defaulting Lender), the Administrative Agent may, by notice to the Dollar Revolving Lenders, elect to reallocate the Swingline Exposure is outstandingamong all non-Defaulting Lenders under the Dollar Revolving Facility by disregarding the Dollar Revolving Commitments of all Defaulting Lenders (except to the extent of any outstanding Dollar Revolving Loans of such Defaulting Lenders) for purposes of calculating each non-Defaulting Lender’’s Dollar Revolving Commitment Percentage, and to the extent the Administrative Agent elects to require such reallocation in accordance with the foregoing, no such Swingline Loan shall be required to be repaid pursuant to this Section 2.16(d) to the extent of such reallocation and (B) to the extent the sum of the total Dollar Revolving Obligations (other than any Dollar Revolving Obligations constituting outstanding Dollar Revolving Loans made by any Defaulting Lender but including each Defaulting Lender’’s Dollar Facility L/C Obligations and Swingline Exposure) plus the total Limited Currency Revolving Obligations (other than any Limited Currency Revolving Obligations constituting outstanding Limited Currency Revolving Loans made by any Defaulting Lender but including each Defaulting Lender’’s Limited Currency Facility L/C Obligations) does not exceed the sum of the total Dollar Revolving Commitments (excluding the Dollar Revolving Commitment of any Defaulting Lender except to the extent of any outstanding Dollar Revolving Loans of such Defaulting Lender) plus the total Limited Currency Revolving Commitments (excluding the Limited Currency Revolving Commitment of any Defaulting Lender except to the extent of any outstanding Limited Currency Revolving Loans of such Defaulting Lender), the Administrative Agent may, by notice to the Dollar Revolving Lenders and the Limited Currency Revolving Lenders, elect to reallocate the L/C Obligations among all non-Defaulting Lenders under the Dollar Revolving Facility and Limited Currency Revolving Facility by disregarding the Dollar Revolving Commitments and Limited Currency Revolving Commitments of all Defaulting Lenders (except to the extent of any outstanding Loans of such Defaulting Lenders) for purposes of calculating each non-Defaulting Lender’’s L/C Commitment Percentage, and to the extent the Administrative Agent elects to require such reallocation in accordance with the foregoing, no such L/C Obligations shall be required to be cash collateralized pursuant to this Section 2.16(d) to the extent of such reallocation; provided that the reallocation pursuant to the foregoing shall not be permitted to the extent it would cause (x) any Dollar Revolving Lender’’s Dollar Revolving Obligations to exceed its Dollar Revolving Committed Amount or (y) any Limited Currency Revolving Lender’’s Limited Currency Revolving Obligations to exceed its Limited Currency Revolving Committed Amount;
(iiie) if to the extent:
(i) the Parent Borrower cash collateralizes any portion of such Defaulting Lender’’s Letter of Credit Exposure L/C Obligations pursuant to this Section 2.14(c2.16(d), the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.09(b)(i) with respect to such cash collateralized portion of such Defaulting Lender’’s Letter of Credit Exposure L/C Obligations during the period such Letter of Credit Exposure is Defaulting Lender’’s L/C Obligations are cash collateralizedcollateralized (but shall be reallocated pursuant to clause (ii) below);
(ivii) to the extent the Letter of Credit Exposure L/C Obligations of the non-Defaulting Lenders is are reallocated pursuant to this each applicable proviso to Section 2.14(c)2.16(d) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.09(b)(i) shall be adjusted in accordance with proportionately to reflect such non-Defaulting Lenders’ Applicable Percentages;reallocation; or
(viii) the Parent Borrower fails to the extent cash collateralize any Defaulting Lender’’s Letter of Credit Exposure is neither cash collateralized nor L/C Obligations pursuant to Section 2.16(d) above and the L/C Obligations are not reallocated pursuant to this either proviso, as applicable, to Section 2.14(c)2.16(d) above, then, without prejudice to any rights or remedies of the Letter of Credit any L/C Issuer or any Lender hereunder, then all fees that otherwise would have otherwise been payable to such Defaulting Lender under pursuant to Section 4.1(b2.09(b)(i) with respect to such Defaulting Lender’’s L/C Obligations shall be payable to each applicable L/C Issuer until such L/C Obligations are cash collateralized or reallocated pursuant to Section 2.16(d);
(f) for purposes of determining:
(i) the amount of the total Commitments for purposes of SectionSections 2.01, 2.03(b) and 2.04(a), the Commitment of each Defaulting Lender shall be excluded therefrom (other than any portion of such Commitment pursuant to which there is then outstanding a Loan from such Defaulting Lender); and
(ii) the applicable L/C Obligations of any Lender with respect to any Letter of Credit Exposure shall instead be payable that is issued, increased (to the extent of the increase only) or renewed (but, for the avoidance of doubt, not with respect to any other applicable L/C Obligations relating to any other Letter of Credit Issuer until such portion Credit) during the period in which there is a Defaulting Lender or the Swingline Exposure of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any Lender with respect to any Swingline Loan made during the period in which there is a Defaulting Lender, the Swingline Commitment of such Defaulting Lender shall not be required deemed to fund be zero; and
(g) in the Administrative Agent’’s sole discretion:
(i) any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments prepayment of the principal amount of any Loans shall be applied solely to prepay the Loans of all non-Defaulting Lenders and/or cash collateral will be provided by pro rata prior to being applied to the Borrowers in accordance with Section 2.14(c), and participating interests in prepayment of any such newly issued or increased Letter Loans of Credit or newly made Swingline Loan shall be allocated among non-any Defaulting Lenders in a manner consistent with Section 2.14(c)(i) (and Defaulting Lenders shall not participate therein)Lender; and
(viiii) subject to Section 2.16(e)(iii), any amount payable to such Defaulting Lender hereunder pursuant to this Credit Agreement (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b2.12 or Section 3.06(b)) but excluding Section 14.7) shallmay, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated non-interest bearing account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent Agent, applicable L/C Issuer or Swingline Lender hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer Borrowers or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer Borrower or Swingline any 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, Credit Agreement and (viiiiii) eighththird, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in . In the event that the Administrative Agent, the Parent Borrower, the Letter of Credit each applicable L/C Issuer and the Swingline Lender each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Administrative Agent shall promptly notify each Lender that such Lender shall cease has ceased to be a Defaulting LenderLender and, from and after the date of such notification, the Swingline Exposure and Letter of Credit Exposure L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Dollar Facility Percentage and Limited Currency Facility 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 Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a);
2.5 [Commitment Fees]; (b) the Commitment and Credit Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.111.1 [Modifications, Amendments or Waivers]); provided, provided that any waiverthis clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
thereby; (c) if any Swingline Loan Swing Loans are outstanding or Letters any Letter of Credit Outstanding exists Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(i) all or any part of such Swingline Loan the outstanding Swing Loans and Letters Letter of Credit Outstanding Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure Revolving Facility Usage does not exceed the total of all non-Defaulting Lenders’ Commitments Revolving Credit Commitments, and (y) the conditions set forth in Section 7 are satisfied no Potential Default or Event of Default has occurred and is continuing at such time;
; (ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) outstanding Swing Loans, and (y) second, cash collateralize for the benefit of the Issuing Lender the Borrower’s obligations corresponding to such Defaulting Lender’s Letter of Credit Exposure Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with a deposit account held at the procedures set forth in Section 5.2(a) Administrative Agent for so long as such Letter of Credit Exposure is Obligations are outstanding;
; (iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure Obligations pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.12(d) [Letter of Credit Fees] with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure Obligations during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is Obligations are cash collateralized and/or reallocatedcollateralized;
(vi) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement any Loan Document to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the Available unused 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 the Required Lenders or the Required any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender Lender, then:
(i) all or the Swingline Exposure (other than any part portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c)) and LC Exposure of such Swingline Loan Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(d) and Letters of Credit Outstanding 2.05(e)) shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders in accordance with their respective Applicable Percentages (for the purposes of such reallocation, such Defaulting Lender’s Commitment shall be disregarded in determining the Non-Defaulting Lenders’ respective Applicable Percentages), but only to the extent that (xA) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total sum of all nonNon-Defaulting Lenders’ Commitments and (yB) the conditions set forth in Section 7 are satisfied at after giving effect to any such timereallocation, no Non-Defaulting Lender’s Revolving Credit Exposure shall exceed such Non-Defaulting Lender’s Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one three Business Day Days following the Borrower’s receipt of written notice by from the Administrative Agent Agent, (xA) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) above) that has not been reallocated and (yB) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a2.05(k) for the benefit of the applicable Issuing Banks the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.11(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter portion of Credit such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if any portion of the extent the Letter of Credit LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.11(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentages;reallocation; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all Letter of Credit participation fees that otherwise would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.11(b) with respect to such portion of such Letter of Credit Defaulting Lender’s unreallocated LC Exposure shall instead be payable to the Letter of Credit Issuer until such Issuing Banks, ratably based on the portion of such Defaulting Lender’s Letter LC Exposure attributable to Letters of Credit issued by each Issuing Bank, until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;pursuant to clause (i) or (ii) above; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer no Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be 100% covered by the Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.19(c), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan or any newly issued, amended, renewed or extended Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.14(c)(i2.19(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount . In the event that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject Bankruptcy Event with respect to any applicable requirements of lawLender Parent shall have occurred following the Effective Date and for so long as such Bankruptcy Event shall continue, no Issuing Bank shall be applied at such time required to issue, amend, extend, renew or times as may be determined by the Administrative Agent (i) first, to the payment of increase 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthand the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender shall have entered into arrangements with the Borrower or the applicable Lender reasonably satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender and each agree Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure Exposures and Letter of Credit Exposure LC Exposures of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitment, and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its Applicable Percentage. The rights and remedies against, and with respect to, a Defaulting Lender under this Section 2.19 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Lender, each Issuing Bank, the Swingline Lender, the Borrower or any other Loan Party may at any time have against, or with respect to, such Defaulting Lender.
Appears in 1 contract
Samples: Revolving Credit Agreement (Marathon Petroleum 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 Available Revolving Loan Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.13;
(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02); provided, provided that any waiverthis clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(c) if any Swingline Loan or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) so long as no Default or Event of Default shall be continuing, all or any part of the LC Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one (1) Business Day following notice by the Administrative Agent (x) firstAgent, prepay cash collateralize for the benefit of each Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a2.06(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.13(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if the extent the Letter of Credit LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.13(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all letter of credit fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.13(b) with respect to such portion of such Letter of Credit Defaulting Lender’s LC Exposure shall instead be payable to each Issuing Bank until and to the Letter of Credit Issuer until extent that such portion of such Defaulting Lender’s Letter of Credit LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vi) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer 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 Borrowers Borrower in accordance with Section 2.14(c2.06(j), 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 2.14(c)(i2.06(j) (and such Defaulting Lenders Lender shall not participate therein); and. If (i) a Bankruptcy Event with respect to a Lender Parent or any Lender shall occur following the date hereof and for so long as such event shall continue, (ii) a Bail-in Action with respect to a Lender Parent or any Lender shall occur following the date hereof or (iii) 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, an Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to such Issuing Bank to defease any risk to it in respect of such Lender hereunder.
(viid) any amount payable to such Defaulting Lender hereunder (whether on account Any payment of principal, interest, fees or otherwise and including any amount that would otherwise be payable other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to such Article VII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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, 9.08 shall be applied at such time or times as may be determined by the Administrative Agent (i) as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender any Issuing Bank hereunder, (iii) ; third, if so determined by to cash collateralize the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Issuing Banks’ LC Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.clause (c) above;
Appears in 1 contract
Samples: Credit Agreement (Cleco Power 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 Available 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 amendment, waiver or waiver other modification pursuant to Section 14.19.02); provided, that, except as otherwise provided that any waiverin Section 9.02, amendment this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(c) if any Swingline Loan or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) that the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay cash collateralize for the benefit of the Issuing Bank only the Borrowers’ obligations corresponding to such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a2.06(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.12(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if the extent the Letter of Credit LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a2.12(a) and Section 4.1(b2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all letter of credit fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.12(b) with respect to such portion of such Letter of Credit Defaulting Lender’s LC Exposure shall instead be payable to the Letter of Credit Issuer Issuing Bank until and to the extent that such portion of such Defaulting Lender’s Letter of Credit LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer 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 Borrowers Company in accordance with Section 2.14(c2.24(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 2.14(c)(i2.24(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) . No reallocation hereunder shall constitute a waiver or release of any amount payable to such claim of any party hereunder against a Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount arising from that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) shall, in lieu of being distributed to such having become a Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to including 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment claim of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or Swingline Lender against such non-Defaulting Lender as a result of such non-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 increased exposure following 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in reallocation. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Company and the Swingline Lender Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of a Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Analogic 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:
: (ai) fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a);
2.3 [Commitment Fees]; (bii) the Commitment and Credit Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.111.1 [Modifications, Amendments or Waivers]); provided, provided that any waiverthis clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
thereby; (ciii) if any Swingline Loan Swing Loans are outstanding or Letters any Letter of Credit Outstanding exists Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of such Swingline Loan the outstanding Swing Loans and Letters Letter of Credit Outstanding Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure Revolving Facility Usage does not exceed the total of all non-Defaulting Lenders’ Commitments ' Revolving Credit Commitments, and (y) the conditions set forth in Section 7 are satisfied no Potential Default or Event of Default has occurred and is continuing at such time;; 41
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, cash collateralize for the benefit of the Issuing Lender the Borrower's obligations corresponding to such Defaulting Lender’s Swingline Exposure 's Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with a deposit account held at the procedures set forth in Section 5.2(a) Administrative Agent for so long as such Letter of Credit Exposure is Obligations are outstanding;
; (iiic) if the Borrower cash collateralizes any portion of such Defaulting Lender’s 's Letter of Credit Exposure Obligations pursuant to this Section 2.14(c)clause (b) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such cash collateralized portion of such Defaulting Lender’s 's Letter of Credit Exposure Obligations during the period such Defaulting Lender's Letter of Credit Exposure is Obligations are cash collateralized;
; (ivd) to the extent if the Letter of Credit Exposure Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (a) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) 2.9.2 [Letter of Credit Fees] shall be adjusted in accordance with such non-non- Defaulting Lenders’ Applicable Percentages;
' Ratable Share; and (ve) to the extent if all or any portion of such Defaulting Lender’s 's Letter of Credit Exposure is Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (a) or (b) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees that would have otherwise been Letter of Credit Fees payable to such Defaulting Lender under Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such portion Defaulting Lender's Letter of Credit Obligations shall be payable to the Issuing Lender (and not to such Defaulting Lender) until and to the extent that such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is Obligations are reallocated and/or cash collateralized and/or reallocated;
collateralized; and (viiv) so long as any such Lender is a Defaulting Lender, the Swingline Lender PNC shall not be required to fund any Swingline Swing Loans and the Issuing Lender shall not be required to issue, amend, increase or extend any Letter of Credit, unless the Issuing Lender is satisfied that the related exposure and the Defaulting Lender's then outstanding Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.11(iii), and participating interests in any newly made Swing Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.11(iii)(a) (and such Defaulting Lender shall not participate therein). If
(i) a Bankruptcy Event with respect to a parent company of any Lender shall occur following the date hereof and for so long as such event shall continue, or (ii) PNC 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, PNC shall not be required to fund any Swing Loan and the Letter of Credit Issuer Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that PNC or 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 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) shall, in lieu of being distributed to such Defaulting Issuing Lender, be retained by as the Administrative Agent in a segregated account andcase may be, subject shall have entered into arrangements with the Borrower or such Lender, satisfactory to any applicable requirements of lawPNC or the Issuing Lender, be applied at such time or times as the case may be determined by the Administrative Agent (i) firstbe, to the payment of defease any amounts owing by such Defaulting Lender risk to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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 it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.hereunder. 42
3. [RESERVED]
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 the Facility Fee shall cease to accrue on the Available 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 the Required Lenders or the Required any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender thereby shall require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or the Swingline Exposure (other than any part portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c) and, in the case of any Defaulting Lender that is a Swingline Lender, other than the portion of such Swingline Loan Exposure referred to in clause (b) of the definition of such term) and Letters LC Exposure of Credit Outstanding such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.06(d) and 2.06(e)) shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent that (xA) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure (in each case, excluding the portion thereof referred to above) does not exceed the total sum of all nonNon-Defaulting Lenders’ Commitments and (yB) such reallocation does not result in the conditions set forth in Section 7 are satisfied at Revolving Credit Exposure of any Non-Defaulting Lender exceeding such timeNon-Defaulting Lender’s Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (xA) first, prepay the portion of such Defaulting Lender’s Swingline Exposure (after giving effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) above) that has not been reallocated and (yB) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s Letter of Credit LC Exposure (after giving effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) above) that has not been reallocated in accordance with the procedures set forth in Section 5.2(a2.05(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees LC Participation Fees to such Defaulting Lender pursuant to Section 4.1(b2.11(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period for so long as such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if any portion of the extent the Letter of Credit LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees LC Participation Fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.11(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentagesreallocation;
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Swingline Exposure is neither cash collateralized reallocated nor reallocated reduced pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Swingline Lender or any other Lender hereunder, all fees Facility Fees that otherwise would have otherwise been payable pursuant to Section 2.11(a) to such Defaulting Lender under Section 4.1(b) (solely with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter Commitment utilized by such Swingline Exposure) shall be payable to the Swingline Lenders (and allocated among them ratably based on the amount of Credit such Defaulting Lender’s Swingline Exposure attributable to Swingline Loans made by each Swingline Lender) until and to the extent that such Swingline Exposure is cash collateralized reallocated and/or reallocated;reduced to zero; and
(vi) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all Facility Fees that otherwise would have been payable pursuant to Section 2.11(a) to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment utilized by such LC Exposure) and LC Participation Fees payable pursuant to Section 2.11(b) to such Defaulting Lender with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as any such Lender is a Defaulting Lender, the no Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer no Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless it is satisfied that unless, in each case, the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be 100% fully covered by the Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.19(c), and participating interests in any such newly issued funded Swingline Loan or increased in any such issued, amended, reviewed or extended Letter of Credit or newly made Swingline Loan shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.14(c)(i2.19(c) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in . In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer each Issuing Bank and the each Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Revolving Credit Agreement (Hess Midstream Partners LP)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees the Commitment Fee set forth in Section 2.3(a) shall cease to accrue on the Available Commitment of for such Defaulting Lender pursuant to Section 4.1(a);Lender.
(b) the Commitment and Extensions of Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 14.111.1), provided that any waiver, amendment or modification (i) requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each disproportionately with respect to the other applicable affected Lenders or (ii) that would increase or extend the term of the Commitment of such Defaulting Lender shall require the consent of such Defaulting Lender;.
(c) if any Swingline Loan or Letters of Credit Outstanding exists L/C Obligations exist at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding L/C Obligations shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Commitment Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter Extensions of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one Business Day following notice by the Administrative Agent Agent, (xA) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) secondin the case of Unsecured Letters of Credit, cash collateralize such Defaulting Lender’s Letter of Credit Exposure L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a8 for so long as such L/C Obligations are outstanding or (B) in the case of Secured Letters of Credit, ensure that the Borrowing Base includes an amount of cash equal to or greater than the Defaulting Lender’s L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Letter of Credit Exposure is L/C Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure L/C Obligations pursuant to this Section 2.14(c2.18(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b3.3(a) with respect to such cash collateralized portion of Defaulting Lender’s L/C Obligations during the period such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is L/C Obligations are cash collateralized;
(iv) to if the extent the Letter of Credit Exposure L/C Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c), 2.18(c) then the fees payable to the Lenders pursuant to Section 4.1(a2.3(a) and Section 4.1(b3.3(a) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Commitment Percentages;; and
(v) to the extent if any Defaulting Lender’s Letter of Credit Exposure is L/C Obligations are neither cash collateralized nor reallocated pursuant to this Section 2.14(c2.18(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Lender or any Lender hereunder, all letter of credit fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) 3.3 with respect to such portion of such Letter of Credit Exposure Defaulting Lender’s L/C Obligations shall instead be payable to the Letter of Credit Issuer applicable Issuing Lender until such portion of such Defaulting Lender’s Letter of Credit Exposure is L/C Obligations are cash collateralized and/or reallocated;.
(vid) so long as any Lender is a Defaulting Lender, the Swingline Lender no Applicable Issuing Party shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.18(c), and participating interests or Commitment Shares 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 2.14(c)(i2.18(c)(i) (and Defaulting Lenders shall not participate therein); and.
(viie) 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 14.8(b) 11.7 but excluding Section 14.72.16) 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 Letter of Credit Issuer or Swingline Lender Applicable Issuing Parties hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lenderan Applicable Issuing Party, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest or Commitment Share in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer Lenders or Swingline an Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, Lender or such Letter of Credit Issuer or Swingline Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Revolving Credit Loans or drawings reimbursement obligations in respect of a payment made by an Issuing Lender pursuant to a Letter of Credits Credit for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 5.2 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in . In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline each Issuing Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure L/C Obligations of the Lenders shall be readjusted to reflect the inclusion of such LenderXxxxxx’s Commitment and on such date such Lender shall purchase at par such of the 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 Commitment Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if one or more Lenders become Defaulting Lenders, then, upon notice (with applicable notice periods set forth below) to such Defaulting Lenders and the Borrower to such effect by the Administrative Agent (which notice may be given only upon the Administrative Agent becoming aware that any Lender becomes shall have become a Defaulting Lender, then including as a result of being advised thereof by the Borrower or the Majority Lenders), the following provisions shall apply for so long as any such Lender is a Defaulting Lender:
(a) fees immediately upon the Administrative Agent’s giving of such notice, the Commitment of each Defaulting Lender shall cease be disregarded in determining whether the Majority Lenders shall have taken any action hereunder or under any other Loan Document (including any consent to any waiver, amendment or other modification pursuant to Section 8.01); provided that any waiver, amendment or other modification that, disregarding the effect of this clause (a), requires the consent of all Lenders or of all Lenders affected thereby shall continue to require the consent of each Defaulting Lender in accordance with the terms hereof;
(b) immediately upon the Administrative Agent’s giving of such notice, (i) no commitment fee shall accrue on the Available unused amount of the Commitment of any Defaulting Lender pursuant to Section 2.03(b) and (ii) no letter of credit fee shall accrue for the account of such Defaulting Lender pursuant to Section 4.1(a2.03(c);
(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 14.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
(c) if any Swingline Loan or Letters Letter of Credit Outstanding Exposure exists at the time a Lender becomes a Defaulting Lender then:
Lender, (i) upon receiving at least three Business Days’ notice from the Administrative Agent, all or any part of such Swingline Loan and Letters the Letter of Credit Outstanding Exposure of such Defaulting Lender shall be reallocated among the non-Lenders other than the Defaulting Lenders Lender in accordance with their respective Applicable Commitment Percentages but only to the extent (x) that the sum of all non-Defaulting Lenders’ Credit Exposures Revolving Exposure plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth Commitments; provided that in Section 7 are satisfied at no event shall any non-Defaulting Lender’s Revolving Exposure exceed such time;
Lender’s Commitment; (ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect be required to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letters of Credit in the amount of the Letter of Credit Exposure of the Defaulting Lender on terms reasonably satisfactory to each Issuing Lender (after giving effect in which case any such cash collateral held by an Issuing Lender will be applied as a payment of Reimbursement Obligations immediately prior to any partial reallocation exercise by such Issuing Lender of its rights to require the funding of participations in such Reimbursement Obligations pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a2.16(e)) for so as long as such Letter of Credit Exposure is outstanding;
; (iii) if in the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent event the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(aSections 2.03(c) and Section 4.1(b2.16(g) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Commitment Percentages after giving effect to such reallocations; (iv) in the event the Borrower cash collateralizes Letters of Credit in the amount of the Letter of Credit Exposure of the Defaulting Lender pursuant to clause (ii) above, then the Lenders other than the Defaulting Lender will be required to fund participations in the remaining Letter of Credit Exposure under Section 2.16(e) in accordance with their Commitment Percentages;
; (v) the Borrower shall not be required to the extent pay any fees to such Defaulting Lender with respect to Section 2.03(b) of this Agreement with respect to such Defaulting Lender’s Letter of Credit Exposure; and (vi) if all or any portion of such Defaulting Lender’s Letter of Credit Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all letter of credit fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(bSections 2.03(c) and 2.16(g) with respect to such portion of such Defaulting Lender’s Letter of Credit Exposure shall instead be payable to (and allocated among the Letter of Credit Issuer until such portion Issuing Lenders ratably based on the amount of such Defaulting Lender’s Letter of Credit Exposure attributable to Letters of Credit issued by each Issuing Lender) shall be payable to the Issuing Lenders until and to the extent that such Letter of Credit Exposure is reallocated and/or cash collateralized and/or reallocatedcollateralized;
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Issuing Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless (i) it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Letter of Credit Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.17(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 2.14(c)(i2.17(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and) or (ii) the Issuing Lender shall have entered into such other arrangements with the Borrower or such Defaulting Lender that are reasonably satisfactory to the Issuing Lender to defease any risk to it in respect of such Defaulting Lender hereunder;
(viie) immediately upon the Administrative Agent’s giving of such notice, the Borrower may, upon at least three Business Days’ notice to a Defaulting Lender (with a copy to the Administrative Agent), elect to irrevocably terminate from time to time the unused portion of the Commitments of such Defaulting Lender. Such termination shall be effective, with respect to such Defaulting Lender’s then existing unused Commitments, on the date set forth in such notice (provided, however, that such date shall be no earlier than three Business Days after receipt of such notice) and with respect to any unused Commitment thereafter arising, on the later of the date set forth in such notice and the date on which such unused Commitment first arises (and no commitment fee will be payable in respect of such unused Commitment terminated on the date it arises). Upon termination of a Defaulting Lender’s unused Commitments under this Section 2.17(d), the Borrower shall pay or cause to be paid all accrued commitment fees payable to such Defaulting Lender and all other amounts due and payable to such Defaulting Lender hereunder. Upon such payments, the obligations of such Defaulting Lender hereunder with respect to such unused Commitments which have been terminated shall, by the provisions hereof, be released and discharged; provided, however, that such Defaulting Lender’s rights and obligations provided in Section 8.10 with respect to such unused Commitments which have been terminated shall survive such release and discharge as to matters occurring prior to such date;
(f) immediately upon the Administrative Agent’s giving of such notice, any amount payable to such or for the account of any Defaulting Lender in its capacity as a 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 14.8(botherwise) but excluding Section 14.7) shallmay, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account andand be applied, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) Agent, first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunderhereunder and, (ii) second, pro rata, to the pro rata payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Issuing Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in . In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Issuing Lender each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Commitment Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender; provided, further, that, except as otherwise expressly agreed by the affected parties, no change hereunder of a Lender’s status from a Defaulting Lender to a non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender. Notwithstanding anything to the contrary set forth herein, the Administrative Agent shall not be required to, but may in its sole discretion, ascertain or inquire as to whether any Lender shall have become, or shall have ceased to be, a Defaulting Lender, and shall not be required to give any notice or take any other action inconsistent with any determination made by it as to whether any Lender is a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Legg Mason, 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 Available unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.13(a) and the Borrowers shall be entitled to retain the same unless such Commitments are reallocated as provided herein;
(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 Credit 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 amendment, waiver or waiver other modification pursuant to Section 14.1)9.02) or under any other Loan Document; provided, that, except as otherwise provided that any waiverin Section 9.02, amendment this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all that such reallocation does not, as to any non-Defaulting Lenders’ Credit Exposures plus Lender, cause such non-Defaulting Lender’s Swingline Revolving Exposure and Letter of Credit Exposure does not to exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeits Revolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one three (3) Business Day Days following notice by the Administrative Agent (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 collateralize, for the benefit of the Issuing Bank, the Borrowers’ obligations corresponding to such Defaulting Lender’s 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 5.2(a2.06(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.13(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if the extent the Letter of Credit LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(aSections 2.13(a) and Section 4.1(b2.13(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all letter of credit fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.13(b) with respect to such portion of such Letter of Credit Defaulting Lender’s LC Exposure shall instead be payable to the Letter of Credit Issuer Issuing Bank until and to the extent that such portion of such Defaulting Lender’s Letter of Credit LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure such 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 2.14(c2.21(c), and participating interests in Swingline Exposure related to any such newly made Swingline Loan or LC Exposure related to any 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 2.14(c)(i2.21(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in . In the event that each of the Administrative Agent, the Administrative Borrower, the Letter of Credit Issuer Swingline Lender and the Swingline Lender each agree Issuing Bank agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on the date of such date readjustment 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. Notwithstanding the fact that any Defaulting Lender has adequately remedied all matters that caused such Lender to become a Defaulting Lender, (x) no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such Lender was a Defaulting Lender and (y) except to the extent otherwise expressly agreed by the affected parties, no change hereunder from “Defaulting Lender” to “Lender” will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if 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 Available unused portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.07(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 amendment, waiver or waiver other modification permitted to be effected by the Required Lenders pursuant to Section 14.111.05), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
(c) if any Swingline Loan or Letters Letter of Credit Outstanding exists Liabilities exist at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part the Letter of Credit Liabilities of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be automatically reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure Liabilities does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Principal Borrower shall within one three Domestic Business Day Days following notice by the Administrative Agent either (x) first, prepay such procure the reduction or termination of the Defaulting Lender’s Swingline Exposure Letter of Credit Liabilities (after giving effect to any partial reallocation pursuant to clause (i) above) and or (y) second, cash collateralize Cash Collateralize for the benefit of the applicable Issuing Lender only the Borrowers’ obligations corresponding to such Defaulting Lender’s Letter of Credit Exposure Liabilities (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a) 6.03 for so long as such Letter of Credit Exposure is Liabilities are outstanding;
(iii) if the Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure Liabilities pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.07(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure Liabilities during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralizedLiabilities are Cash Collateralized;
(iv) to the extent that the Letter of Credit Exposure Liabilities of the Defaulting Lender are reallocated among the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the letter of credit fees otherwise payable to the Lenders Defaulting Lender pursuant to Section 4.1(a2.07(b) and Section 4.1(b) in respect of such reallocated Letter of Credit Liabilities shall be adjusted payable to the non-Defaulting Lenders in accordance with such non-Defaulting Lenders’ Applicable Percentages;; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Exposure Liabilities is neither cash collateralized not reallocated, reduced, terminated nor reallocated Cash Collateralized pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lenders or any other Lender hereunder, all letter of credit fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.07(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized Liabilities shall be payable to the applicable Issuing Lender until and to the extent that such Letter of Credit Liabilities are reallocated, reduced, terminated and/or reallocated;Cash Collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer Issuing Lenders shall not be required to issue, amend extend, renew or increase any Letter of Credit, unless it is satisfied that the related exposure Defaulting Lender’s then outstanding Letter of Credit Liabilities after giving effect thereto will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers prepaid, reduced, terminated and/or Cash Collateralized in accordance with Section 2.14(c2.21(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 2.14(c)(i2.21(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 . If (i) first, a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent shall occur following the payment of any amounts owing by date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) second, pro rata, to the payment of an Issuing Lender has a good faith belief that any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held has defaulted in such account as cash collateral for future fulfilling its funding obligations of the Defaulting under one or more other agreements in which such Lender of commits to extend credit, such Issuing Lender shall not be required to issue, extend, renew or increase any participating interest in any Swingline Loan or Letter of Credit, (iv) fourthunless such Issuing Lender shall have entered into arrangements with the Principal Borrower or such Lender, reasonably satisfactory to the funding of such Issuing Lender to defease any Loan risk to such Issuing Lender in respect of which such Defaulting Lender has failed hereunder relating to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in Liabilities. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Principal Borrower and the Swingline Lender Issuing Lenders each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure Liabilities of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be is necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage; provided that there shall be no retroactive effect on fees reallocated pursuant to Section 2.21(c)(iv) and (v).
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 cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.12(a);; and
(b) the outstanding Commitment and Credit Exposure Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.110.02); provided, provided that any waiverthis clause (b) shall not apply in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders each Lender or each Lender affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require thereby. In the consent of such Defaulting Lender;
(c) if any Swingline Loan or Letters of Credit Outstanding exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (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 such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees event that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure Loans of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitments and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender the Lenders to hold such Loans in accordance with their Applicable Percentages. No Commitment of any Lender shall be increased or otherwise affected and, except as otherwise expressly provided in this Section, performance by the Borrower of its Applicable Percentageobligations hereunder and under the other Loan Documents shall not be excused or otherwise modified, as a result of the operation of this Section. The rights and remedies against a Defaulting Lender under this Section are in addition to other rights and remedies that the Borrower, the Administrative Agent, or any non-Defaulting Lender may have against such Defaulting Lender (and, for the avoidance of doubt, each non-Defaulting Lender shall have a claim against any Defaulting Lender for any losses it may suffer as a result of the operation of this Section).
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:
: (ai) fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a);
2.3 [Unused Line Fees]; (bii) the Commitment and Credit Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.1Section
12.1 [Modifications, Amendments or Waivers]); provided, provided that any waiverthis clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
thereby; (ciii) if any Swingline Loan Swing Loans are outstanding or Letters any Letter of Credit Outstanding exists Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of such Swingline Loan the outstanding Swing Loans and Letters Letter of Credit Outstanding Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure Revolving Facility Usage does not exceed the total of all non-Defaulting Lenders’ Commitments Revolving Credit Commitments, and (y) the conditions set forth in Section 7 are satisfied no Potential Default or Event of Default has occurred and is continuing at such time;
; (iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, cash collateralize for the benefit of the Issuing Lender the Borrowers’ obligations corresponding to such Defaulting Lender’s Swingline Exposure Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with a deposit account held at the procedures set forth in Section 5.2(a) Administrative Agent for so long as such Letter of Credit Exposure is Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.{N0289348 2 } 48
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 Ticking Fees shall cease to accrue on the Available Commitment of such Defaulting Lender pursuant to Section 4.1(a2.10(a);; and
(b) the Commitment and Credit Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether all the Required Lenders or the Required any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender;
(c) if any Swingline Loan or Letters of Credit Outstanding exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (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 such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a) for so long as such Letter of Credit Exposure is outstanding;
(iii) if terms hereof. In the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees event that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each Company agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall thereupon cease to be a Defaulting LenderLender (but shall not be entitled to receive any Ticking Fees ceasing to accrue during the period when it was a Defaulting Lender as set forth in this Section and all amendments, and the Swingline Exposure and Letter of Credit 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 waivers or other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans modifications effected without its consent in accordance with its Applicable Percentagethe provisions of Section 9.02 and this Section during such period shall be binding on it). The rights and remedies against, and with respect to, a Defaulting Lender under this Section are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent, any Lender or the Company may at any time have against, or with respect to, such Defaulting Lender.
Appears in 1 contract
Samples: Term 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 Available 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 Credit 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 14.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderhereunder;
(c) if any Swingline Loan or Letters of Credit Outstanding LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeRevolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) firstcash collateralize, prepay for the benefit of the Issuing Bank, the Borrower’s obligations corresponding to such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a2.06(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.12(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if the extent the Letter of Credit LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(aSections 2.12(a) and Section 4.1(b(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any Lender hereunder, all letter of credit fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.12(b) with respect to such portion of such Letter of Credit Defaulting Lender’s LC Exposure shall instead be payable to the Letter of Credit Issuer Issuing Bank until such portion of such Defaulting Lender’s Letter of Credit LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.20(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 2.14(c)(i2.20(c)(i) (and such Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 if (i) first, a Bankruptcy Event with respect to the payment Parent of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) secondthe 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, pro ratathe Issuing Bank shall not be required to issue, to the payment of amend or increase any amounts owing by such Defaulting Lender to the Letter of Credit Issuer unless the Issuing Bank shall have entered into arrangements with the Borrower or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline such 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, satisfactory to the funding of Issuing Bank to defease any Loan risk in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; andhereunder.
(de) in the event that each of the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree Issuing Bank agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on the date of such date readjustment 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 (Potbelly 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 Available Commitment of such Defaulting Lender pursuant to Section 4.1(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 14.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
(c) if any Swingline Loan or Letters of Credit Outstanding LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the then Borrower shall within one Business Day following notice by the Administrative Agent (xA) 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 such Defaulting Lender’s 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 5.2(a2.18(i) for so long as such Letter of Credit LC Exposure is outstanding, or (B) enter into arrangements satisfactory to the Administrative Agent, the Issuing Bank, the Swingline Lender and the Borrower;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vib) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by cash collateralized in accordance with Section 2.19(a) (or such other arrangements as are satisfactory to the Commitments of Administrative Agent, the Issuing Bank, the Swingline Lender and the Borrower). The rights and remedies against a Defaulting Lender under this Section 2.19 are in addition to other rights and remedies that Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender and the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) shall, in lieu of being distributed to may have against such Defaulting Lender. The arrangements permitted or required by this Section 2.19 shall be permitted under this Agreement, be retained notwithstanding any limitation on Liens or otherwise.”;
(s) Section 2.22(a) is amended and restated in its entirety to read as follows:
(a) At any time, Borrower may 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 written notice to the Administrative Agent hereunder, (ii) second, pro rata, and without the consent of the other Lenders hereunder request increases to the payment existing Tranche B Revolving Commitments (any such increase, an “Incremental Revolving Commitment”). Each Incremental Revolving Commitment shall be in a minimum amount of any amounts owing at least $5.0 million and the aggregate amount of all Incremental Revolving Commitments shall not exceed $100.0 million (which amount shall be increased immediately following the Tranche A Revolving Maturity Date by such Defaulting Lender an amount equal to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held Tranche A Revolving Commitments 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, effect immediately prior to the funding of any Loan in respect of Tranche A Revolving Maturity Date). Such notice shall specify the date (an “Increased Amount Date”) on which Borrower proposes that the Incremental Revolving Commitments be made available, which shall be a date not less than 5 Business Days after the date on which such Defaulting Lender has failed notice is delivered to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by and the amount of the Incremental Revolving Commitments. The Administrative Agent shall notify Borrower in writing of the identity of each Lender or other financial institution reasonably acceptable to the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, Borrower (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreementeach, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any “Incremental Revolving Lender, such Letter of Credit Issuer or Swingline Lender against such Defaulting Lender as a result ”) to whom the Incremental Revolving Commitments have been allocated and the amounts 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 jurisdictionallocations; provided that if such payment is (x) any Lender approached to provide all or a prepayment portion of the principal amount Incremental Revolving Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Commitment. Such Incremental Revolving Commitments shall become effective as of such Increased Amount Date; provided that (1) no Default or Event of Default has occurred and is continuing or would result after giving effect to the making of such Incremental Revolving Commitments and Revolving Loans or the application of the proceeds therefrom, (2) such increase in the Commitments shall be evidenced by one or more joinder agreements (the “Increase Joinder”) executed by Borrower, the Administrative Agent and each Lender making such Incremental Revolving Commitment, in form and substance satisfactory to each of them. The Increase Joinder may, without the consent of any Revolving Credit Loans other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or drawings appropriate, in respect the opinion of Letter the Administrative Agent, to effect the provisions of Credits for this Section 2.22, and each shall be recorded in the register, each of which a Defaulting Lender has funded its participation obligations and (y) made at a time when shall be subject to the conditions requirements set forth in Section 7 are satisfied, such payment 2.15(e). All terms and conditions of any Tranche B Revolving Loans or other Obligations relating to Incremental Revolving Commitments shall be applied solely on the same terms and conditions as those applicable to prepay the Tranche B Revolving Credit Commitments, Tranche B Revolving Loans ofand other Obligations under this Agreement. In addition, and reimbursement obligations owed tounless otherwise specifically provided herein, all non-Defaulting Lenders pro rata prior references in Loan Documents to being applied Revolving Loans and Tranche B Revolving Loans shall be deemed, unless the context otherwise requires, to the prepayment of any include references to Revolving Credit Loans and Tranche B Revolving Loans, or reimbursement obligations owed torespectively, any Defaulting Lender; andmade pursuant to Incremental Revolving Commitments, made pursuant to this Agreement.”;
(dt) Section 2.22(b) is amended and restated in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender its entirety to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit 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) read as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.follows:
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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) commitment fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.10(a);
(b) the Commitment and Credit Exposure of such Defaulting Lender shall not be included in determining whether all the Majority Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02); provided, that, except as otherwise provided that any waiverin Section 9.02, amendment this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure or LC Exposure (other than (A) the portion of such Swingline Loan Exposure referred to in clause (b) of the definition of such term and Letters (B) any portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(d) or (e)) of Credit Outstanding such Defaulting Lender shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the non-Defaulting Lenders in accordance with their respective Applicable Percentages (for the purposes of such reallocation, such Defaulting Lender’s Commitment shall be disregarded in determining the non-Defaulting Lenders’ respective Applicable Percentages), but only to the extent that (xX) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments Commitments, (Y) after giving effect to any such reallocation, no non-Defaulting Lender’s Credit Exposure shall exceed such non-Defaulting Lender’s Commitment and (yZ) the conditions set forth in Section 7 are satisfied no Default or Event of Default has occurred and is continuing at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one three (3) Business Day Days following written 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 collateralize, for the benefit of the applicable Issuing Banks, the Borrower’s obligations corresponding to such Defaulting Lender’s 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 5.2(a2.04(j) for so long as such Letter of Credit Defaulting Lender’s LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(b2.10(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if any portion of the extent the Letter of Credit LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a2.10(a) and Section 4.1(b2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;Percentages after giving effect to such reallocation; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all participation fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.10(b) with respect to such portion of such Letter of Credit Defaulting Lender’s LC Exposure shall instead be payable to the Letter of Credit Issuer until such applicable Issuing Banks, ratably based on the portion of such Defaulting Lender’s Letter LC Exposure attributable to Letters of Credit issued by each such Issuing Bank, until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;pursuant to clause (i) or (ii) above; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer no 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 Borrowers Borrower in accordance with Section 2.14(c2.18(c), and Swingline Exposure related to any such newly made Swingline Loan 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 2.14(c)(i2.18(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 . If (i) first, a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent shall occur following the payment of any amounts owing by date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunderor 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, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, Lender shall not be required to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, (iv) fourthunless the Swingline Lender or such Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swingline Lender or Issuing Bank, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender and each Issuing Bank agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure LC Exposures of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage. The rights and remedies against, and with respect to, a Defaulting Lender under this Section 2.18 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Lender, each Issuing Bank, the Borrower or any other Loan Party may at any time have against, or with respect to, such 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:
(ai) fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.3 [Commitment Fees];
(bii) the Commitment and Credit Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.111.1 [Modifications, Amendments or Waivers]); provided, provided that any waiverthis clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(ciii) if any Swingline Loan Swing Loans are outstanding or Letters any Letter of Credit Outstanding exists Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of such Swingline Loan the outstanding Swing Loans and Letters Letter of Credit Outstanding Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure Revolving Facility Usage does not exceed the total of all non-Defaulting Lenders’ Commitments ' Revolving Credit Commitments, and (y) the conditions set forth in Section 7 are satisfied no Potential Default or Event of Default has occurred and is continuing at such time;
(iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, Cash Collateralize for the benefit of such Issuing Lender the Borrower's obligations corresponding to such Defaulting Lender’s Swingline Exposure 's Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with a deposit account held at the procedures set forth in Section 5.2(a) Administrative Agent for so long as such Letter of Credit Exposure is Obligations are outstanding;
(iiic) if the Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Lender’s 's Letter of Credit Exposure Obligations pursuant to this Section 2.14(c)clause (b) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such cash collateralized portion of such Defaulting Lender’s 's Letter of Credit Exposure Obligations during the period such Defaulting Lender's Letter of Credit Exposure is cash collateralizedObligations are Cash Collateralized;
(ivd) to the extent if the Letter of Credit Exposure Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (a) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) 2.9.2 [Letter of Credit Fees] shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;' Ratable Share; and
(ve) to the extent if all or any portion of such Defaulting Lender’s 's Letter of Credit Exposure is Obligations are neither cash collateralized reallocated nor reallocated Cash Collateralized pursuant to this Section 2.14(c)clause (a) or (b) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer such Issuing Lender or any other Lender hereunder, all fees that would have otherwise been Letter of Credit Fees payable to such Defaulting Lender under Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such portion Defaulting Lender's Letter of Credit Obligations shall be payable to such Issuing Lender (and not to such Defaulting Lender) until and to the extent that such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized Obligations are reallocated and/or reallocated;Cash Collateralized; and
(viiv) so long as any such Lender is a Defaulting Lender, the Swingline Lender PNC shall not be required to fund any Swingline Loan Swing Loans and the Letter of Credit Issuer such Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it such Issuing Lender is satisfied that the related exposure and the Defaulting Lender's then outstanding Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral Cash Collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.10(iii), and participating interests in any such newly made Swing Loan or any 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 2.14(c)(i2.10(iii)(a) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 . If (i) first, a Bankruptcy Event with respect to the payment a parent company of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunderevent shall continue, or (ii) secondPNC or an Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, pro rataPNC shall not be required to fund any Swing Loan and the Issuing Lenders shall not be required to issue, to the payment of amend or increase any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthunless PNC or such Issuing Lender, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to PNC or such Issuing Lender, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer PNC and the Swingline Issuing Lender each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lenderthe Administrative Agent will so notify the parties hereto, and the Swingline Exposure Ratable Share of the Swing Loans and Letter of Credit Exposure Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment 's Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentageRatable 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 Available Commitment of such Defaulting Lender pursuant to Section 4.1(a2.11(a);
(b) the Commitment and Credit 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 amendment, waiver or waiver other modification pursuant to Section 14.19.02); provided, provided that any waiverthis clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and LC Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Percentages, but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (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 for the benefit of the Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s 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 5.2(a2.05(i) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.11(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if the extent the Letter of Credit LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(aSections 2.11(a) and Section 4.1(b2.11(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have otherwise been payable to such Defaulting Lender under Section 4.1(b) (solely with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter Commitment that was utilized by such LC Exposure) and letter of Credit credit fees payable under Section 2.11(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/or reallocated;collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer 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 Borrowers Borrower in accordance with Section 2.14(c2.19(c), and participating interests in any such newly made Swingline Loan or any 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 2.14(c)(i2.19(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 . If (i) first, a Bankruptcy Event with respect to the payment any Lender or a Parent of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunderor 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, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, Lender shall not be required to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, (iv) fourthunless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the applicable Borrower or such Lender, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Swingline Lender and the Swingline Lender Issuing Bank each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentagePercentage (without taking such Lender into account as a “Defaulting Lender” for purposes of the proviso in the definition of such term).
Appears in 1 contract
Samples: Credit Agreement (Fairchild Semiconductor International 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 Fees shall cease to accrue on the Available unused portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.06(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 If any action hereunder (including any consent to any amendment or waiver pursuant to Section 14.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
(c) if any Swingline Loan or Letters Letter of Credit Outstanding exists Liabilities exist at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part provided no Event of Default shall have occurred and be continuing, the Letter of Credit Liabilities of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be automatically reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all each non-Defaulting Lenders’ Lender’s Loans plus its Letter of Credit Exposures plus Liabilities does not exceed such non-Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeCommitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one three Business Day Days following notice by the Administrative Agent or any Issuing Lender that has an outstanding Letter of Credit (x) first, prepay such either (A) procure the reduction or termination of the Defaulting Lender’s Swingline Exposure Letter of Credit Liabilities (after giving effect to any partial reallocation pursuant to clause (i) above) and or (yB) second, cash collateralize for the benefit of the Issuing Lender(s) only the Borrower’s obligations corresponding to such Defaulting Lender’s Letter of Credit Exposure Liabilities (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a) for so long as such Letter of Credit Exposure is Liabilities are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure Liabilities pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.06(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure Liabilities during the period and to the extent such Defaulting Lender’s Letter of Credit Exposure is Liabilities are cash collateralized;
(iv) to the extent that the Letter of Credit Exposure Liabilities of the non-Defaulting Lenders is Lender are reallocated pursuant to this Section 2.14(c)clause (i) above, then the letter of credit fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.06(b) shall to the same extent be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Exposure Liabilities is neither not reallocated, reduced, terminated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender(s) or any other Lender hereunder, all letter of credit fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.06(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is Liabilities shall be payable to the Issuing Lender(s) until and to the extent that such Letter of Credit Liabilities are reallocated, reduced, terminated and/or cash collateralized and/or reallocated;collateralized.
(vic) so So long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer Issuing Lenders shall not be required to issue, amend amend, extend or increase any Letter of Credit, unless it is satisfied that the related exposure Defaulting Lender’s Letter of Credit Liabilities after giving effect thereto will be 100% covered by the Commitments of the non-Defaulting Lenders and/or reduced, terminated and/or cash collateral will be provided by the Borrowers collateralized in accordance with Section 2.14(c2.13(b), 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 2.14(c)(i2.13(b)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and.
(d) in In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline Lender each agree Issuing Lenders reasonably determine that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure Liabilities of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be is necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage, and upon such purchase such Lender shall cease to be a Defaulting Lender and any cash collateral posted for its Letter of Credit Liabilities shall be released; provided that there shall be no retroactive effect on fees which were not paid pursuant to Section 2.13(a) or which were reallocated pursuant to Section 2.13(b)(iv) and (v).
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.01, 2.12 or 8.04, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender under this Agreement for the benefit of the Administrative Agent or any Issuing Lender to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
Appears in 1 contract
Samples: Credit Agreement (Textron 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: the commitment fee pursuant to Section 2.09(a) fees shall cease to accrue on the Available Revolving Credit(a) Commitment of such Lender so long as it is a Defaulting Lender (except to the extent it is payable to an L/C Issuer pursuant to Section 4.1(aclause (b)(v) below);
(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 14.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
(c) ; if any Swingline Loan Swing Line Loans, L/C Obligations or Letters of Credit Outstanding exists Protective Advance Participations exist at the time time(b) a Lender becomes a Defaulting Lender then:
(i) : all or any part of such Swingline Loan Swing Line Loans, L/C Obligations and Letters Protective Advance(i) Participations shall be reallocated among the non-Defaulting Lenders to the extent that the conditions set forth in Section 4.02 are satisfied at the time of Credit Outstanding such reallocation (and unless the Borrowers shall have otherwise notified the Administrative Agent at such time, the Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at such time) as follows: all or any part of such Defaulting Lender’s U.S. Swing Line Participations, U.S.(A) L/C Participations and U.S. Protective Advance Participations shall be reallocated among the non-Defaulting Lenders in accordance with their respective U.S. Applicable Percentages Adjusted Percentages, but only to the extent that (x1) the sum of all non-Defaulting Lenders’ U.S. Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure U.S. Swing Line Participations, U.S. L/C Participations and Letter of Credit Exposure U.S. Protective Advance Participations does not exceed the total of all non-Defaulting Lenders’ U.S. Revolving Credit Commitments and (2) the sum of each non-Defaulting Lender’s U.S. Revolving Credit Exposures plus that non-Defaulting Lender’s U.S. Applicable Adjusted Percentage of -127- CG&R Draft Current date: 03/02/2023 10:05 AM 63515514v23CG&R Draft Current date: 03/01/2023 4:17 PM 70014411v6 such Defaulting Lender’s (x) U.S. Swing Line Participations (y) U.S. L/C Participations and (z) U.S. Protective Advance Participations does not exceed the conditions set forth amount of such non-Defaulting Lender’s U.S. Revolving Credit Commitments; and all or any part of such Defaulting Lender’s Canadian Protective Advance(B) Participations shall be reallocated among the non-Defaulting Lenders in Section 7 are satisfied at accordance with their respective Canadian Applicable Adjusted Percentages, but only to the extent that (1) the sum of all non-Defaulting Lenders’ Canadian Revolving Credit Exposures and Canadian Protective Advance Participations does not exceed the total of all non-Defaulting Lenders’ Canadian Revolving Credit Commitments and (2) the sum of each non-Defaulting Lender’s Canadian Revolving Credit Exposures plus that non-Defaulting Lender’s Canadian Applicable Adjusted Percentage of such time;
(ii) Defaulting Lender’s Canadian Protective Advance Participations does not exceed the amount of such non-Defaulting Lender’s Canadian Revolving Credit Commitments; if the reallocation described in clause (i) above cannot, or can only partially, be effected, effected,(ii) the U.S. Borrower shall within one Business Day following notice by the Administrative Agent without prejudice for any right or remedy available to it hereunder or under law (x) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) Swing Line Participations and Protective Advance Participations and (y) second, cash collateralize Cash Collateralize such Defaulting Lender’s Letter of Credit Exposure L/C Participations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with a manner reasonably satisfactory to the procedures set forth in Section 5.2(a) for so long as such Letter of Credit Exposure is outstanding;
(iii) Administrative Agent and the L/C Issuer; if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure L/C Obligations is Cash Collateralized(iii) pursuant to this Section 2.14(c)clause (ii) above, the U.S. Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) the Letter of Credit Fee with respect to such cash collateralized portion of such Defaulting Lender’s Letter L/C Obligations so long as it is Cash Collateralized; if any portion of Credit Exposure during the period such Letter of Credit Exposure Defaulting Lender’s L/C Obligations is cash collateralized;
reallocated to the(iv) non-Defaulting Lenders pursuant to clause (ivi) to the extent above, then the Letter of Credit Exposure of Fee with respect to such portion shall be allocated among the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with their U.S. Applicable Adjusted Percentages; or if any portion of such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure L/C Obligations is neither cash collateralized Cash Collateralized(v) nor reallocated pursuant to this Section 2.14(c2.16(b), then, without prejudice to any rights or remedies of the Letter of Credit any L/C Issuer or any Lender hereunder, all fees that would have otherwise been the Letter of Credit Fee payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure Defaulting Lender’s L/C Obligations shall instead be payable to the Letter of Credit applicable L/C Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized L/C Obligations are Cash Collateralized and/or reallocated;
(vi; Notwithstanding the foregoing, subject to Section 10.23, no reallocation hereunder shall(vi) so long as constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender is arising from that Lender having become a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment claim of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or Swingline Lender against such Non-Defaulting Lender as a result of such Non-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 increased exposure following 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 jurisdictionreallocation; provided that if such payment is (x) a prepayment of the principal amount of any Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in In the event that the Administrative Agent, the U.S. Borrower, the Letter of Credit Issuer and L/C Issuers or the Swingline Lender Swing Line(c) Lender, as the case may be, each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lenderthe Swing Line Participations, L/C Participations and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.-128- CG&R Draft Current date: 03/02/2023 10:05 AM 63515514v23CG&R Draft Current date: 03/01/2023 4:17 PM 70014411v6
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 Available Commitment of such Defaulting Lender pursuant to Section 4.1(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 14.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
(c) if any Swingline Loan or Letters of Credit Outstanding exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only Anything herein to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus contrary notwithstanding, during such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (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 such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any Revolving Lender is a Defaulting Lender, the Swingline such Defaulting Lender shall will not be required entitled to fund any Swingline Loan and commitment fees accruing during such period pursuant to Section 2.8(a) (but without prejudice to the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments rights of the non-Revolving Lenders other than any Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(crespect of such fees), and participating interests in any such newly issued or increased Letter the pro rata payment provisions of Credit or newly made Swingline Loan shall Section 2.17 will automatically be allocated among deemed adjusted to reflect the provisions of this Section 2.23(a).
(b) Anything herein to the contrary notwithstanding, with the prior written approval of the Administrative Agent, the Borrower may terminate (on a non-ratable basis) the unused amount of the Revolving Commitment of any Defaulting Lender on not less than five (5) Business Days’ prior written notice to the Administrative Agent (which will promptly notify the other Lenders thereof), and in a manner consistent with such event the provisions of Section 2.14(c)(i2.23(c) (and Defaulting Lenders shall not participate therein); and
(vii) will apply to all amounts thereafter paid by the Borrower for the account of any amount payable to such Defaulting Lender hereunder in respect of its Revolving Commitment and Revolving Extensions of Credit (whether on account of principal, interest, fees fees, indemnity or otherwise other amounts), provided that such termination will not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agent, the Swingline Lender, or any other Revolving Lender may have against such Defaulting Lender.
(c) If any Revolving Lender becomes, and including any amount that would otherwise be payable during the period it remains, a Defaulting Lender, the following provisions shall apply with respect to such Defaulting Lender’s Revolving Percentage of the aggregate principal amount of all Swingline Loans then outstanding (such Defaulting Lender’s “Swingline Exposure”):
(i) 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 notice pursuant to Section 14.8(b2.5 in such amounts and at such times as may be required to repay an outstanding Swingline Loan, as applicable;
(ii) but excluding Section 14.7The Borrower will, not later than three (3) shallBusiness Days after demand by the Administrative Agent (at the direction of the Swingline Lender) (x) Cash Collateralize a portion of the obligations of the Borrower to the Swingline Lender equal to such Defaulting Lender’s Swingline Exposure, (y) in the case of such Swingline Exposure, prepay all Swingline Loans, or (z) make other arrangements satisfactory to the Administrative Agent and the Swingline Lender, as the case may be, in lieu their sole discretion, to protect them against the risk of being non-payment by such Defaulting Lender; provided that no such Cash Collateralization will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Swingline Lender or any other Lender may have against such Defaulting Lender, or cause such Defaulting Lender to be a Non-Defaulting Lender; and
(iii) Any amount paid by the Borrower for the account of a Defaulting Lender in respect of its Revolving Commitment or its Revolving Extensions of Credit (whether on account of principal, interest, fees, indemnity payments or other amounts) will not be paid or distributed to such Defaulting Lender, but will instead be retained by the Administrative Agent in a segregated non-interest bearing account anduntil the termination of the Revolving Commitments, subject to any applicable requirements of law, at which time the funds in such account will be applied at such time or times as may be determined by the Administrative Agent (i) Agent, to the fullest extent permitted by law, in the following order of priority: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) under this Agreement; second, pro rata, to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth; third, to the payment of any amounts owing post-default interest and then current interest due and payable to the Non-Defaulting Lenders, ratably among them in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or Swingline Lender against such Defaulting Lender as a result accordance with the amounts of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventhinterest then due and payable to them; fourth, to the payment of any 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 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, to pay 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, Agreement to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine jurisdiction may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentageotherwise direct.
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:
(ai) fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.3 [Commitment Fees];
(bii) the Commitment and Credit Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.111.1 [Modifications, Amendments or Waivers]); provided, provided that any waiverthis clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(ciii) if any Swingline Loan Swing Loans are outstanding or Letters any Letter of Credit Outstanding exists Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(iA) all or any part of such Swingline Loan the outstanding Swing Loans and Letters Letter of Credit Outstanding Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure Revolving Facility Usage does not exceed the total of all non-Defaulting Lenders’ Commitments Revolving Credit Commitments, and (y) the conditions set forth in Section 7 are satisfied no Potential Default or Event of Default has occurred and is continuing at such time;
(iiB) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, cash collateralize for the benefit of the Issuing Lender the Borrower’s obligations corresponding to such Defaulting Lender’s Swingline Exposure Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with a deposit account held at the procedures set forth in Section 5.2(a) Administrative Agent for so long as such Letter of Credit Exposure is Obligations are outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure Obligations pursuant to this Section 2.14(c)clause (b) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure Obligations during the period such Defaulting Lender’s Letter of Credit Exposure is Obligations are cash collateralized;
(ivD) to the extent if the Letter of Credit Exposure Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (a) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) 2.9.2 [Letter of Credit Fees] shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;Ratable Share; and
(vE) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Exposure is Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (a) or (b) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees that would have otherwise been Letter of Credit Fees payable to such Defaulting Lender under Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is Obligations shall be payable to the Issuing Lender (and not to such Defaulting Lender) until and to the extent that such Letter of Credit Obligations are reallocated and/or cash collateralized and/or reallocated;collateralized; and
(viiv) so long as any such Lender is a Defaulting Lender, the Swingline Swing Loan Lender shall not be required to fund any Swingline Loan Swing Loans and the Letter of Credit Issuer Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it the Swing Loan Lender or the Issuing Lender, as the case may be, is satisfied that the related exposure and the Defaulting Lender’s then outstanding Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.11(iii), and participating interests in any such newly made Swing Loan or any 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 2.14(c)(i2.11(iii)(A) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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 . If (i) first, a Bankruptcy Event with respect to the payment a parent company of any amounts owing by Lender shall occur following the date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunderevent shall continue, or (ii) secondthe Swing Loan 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, pro ratathe Swing Loan Lender shall not be required to fund any Swing Loan and the Issuing Lender shall not be required to issue, to the payment of amend or increase any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthunless the Swing Loan Lender or the Issuing Lender, as the case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Swing Loan Lender or the Issuing Lender, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Swing Loan Lender and the Swingline Issuing Lender each agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lenderthe Administrative Agent will so notify the parties hereto, and the Swingline Exposure Ratable Share of the Swing Loans and Letter of Credit Exposure Obligations of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable PercentageRatable Share.
Appears in 1 contract
Samples: Revolving Credit Facility (Advanced Drainage Systems, 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 Available 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 amendment, waiver or waiver other modification pursuant to Section 14.19.02); provided, that, except as otherwise provided that any waiverin Section 9.02, amendment this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lenderthereby;
(c) if any Swingline Loan or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part of the LC Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay cash collateralize for the benefit of the relevant Issuing Banks only the Borrowers’ obligations corresponding to such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a2.06(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.12(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if the extent the Letter of Credit LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all facility fees that otherwise would have otherwise been payable to such Defaulting Lender under Section 4.1(b) (solely with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter Commitment that was utilized by such LC Exposure) and letter of Credit credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the relevant Issuing Banks until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender no Issuing Bank shall not be required to fund any Swingline Loan and the Letter of Credit Issuer 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 Borrowers Company in accordance with Section 2.14(c2.25(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 2.14(c)(i2.25(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and.
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) 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, a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent shall occur following the payment of any amounts owing by date hereof and for so long as such Defaulting Lender to the Administrative Agent hereunder, event shall continue or (ii) secondany 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, pro ratano Issuing Bank shall be required to issue, to the payment of amend or increase any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthunless such Issuing Bank shall have entered into arrangements with the Company or such Lender, satisfactory to the funding of such Issuing Bank to defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Company and the Swingline Lender each agree Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Ametek 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 Available Commitment unfunded portion of the Commitments of such Defaulting Lender pursuant to Section 4.1(a)3.3.1;
(b) in the Commitment and Credit Exposure of event that such Defaulting Lender shall not fail to respond to any request for any waiver, consent, amendment or modification requested hereunder within twenty (20) days of written request from the Administrative Agent, such Defaulting Lender shall be included in deemed to have consented or agreed to such requested waiver, consent, amendment or modification, as the case may be, solely for purposes of determining whether all Lenders or (as opposed to the Required Lenders Lenders) have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 14.110.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
(c) if any Swingline Loan or Letters Letter of Credit Outstanding exists Outstandings exist at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters Letter of Credit Outstanding Outstandings of such Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent that as a result thereof (x) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures Exposure plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does Outstandings would not exceed an amount equal to the total of all nonNon-Defaulting Lenders’ Commitments Percentage of the Revolving Credit Commitment Amount, (y) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure plus such Non-Defaulting Lender’s share under this clause (i) of such Defaulting Lender’s Letter of Credit Outstandings would not exceed an amount equal to such Non-Defaulting Lender’s Percentage of the Revolving Credit Commitment Amount then in effect and (yz) the conditions set forth in Section 7 5.2 are satisfied at such time;; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business 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 such Defaulting Lender’s Letter of Credit Exposure Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a2.6.4(b) for so long as such Letter of Credit Exposure is Outstandings are outstanding;; and
(iii) if the Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure Outstandings pursuant to this Section 2.14(c2.10(c), the Borrower shall not be required to pay any fees to in respect of the interest of such Defaulting Lender pursuant to Section 4.1(b) 3.3.4 with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure Outstandings during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;Outstandings are Cash Collateralized; and
(iv) to the extent if the Letter of Credit Exposure Outstandings of the nonNon-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c2.10(c), then the fees payable to the Lenders pursuant to Section 4.1(a) 3.3.1 and Section 4.1(b) 3.3.4 shall be adjusted to give effect to such reallocations in accordance with such nonNon-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vid) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit no Issuer shall not be required to issue, amend amend, extend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Cash Collateralized in accordance with this Section 2.14(c2.10(c) (and, if applicable, Section 2.6.4), and participating interests in any such newly issued issued, extended or increased Letter of Credit or newly made Swingline Loan shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.14(c)(i2.10(c)(i) (and Defaulting Lenders shall not participate therein); and
(viie) 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 14.8(b) but excluding Section 14.74.8) 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 then owing by such Defaulting Lender to the Letter of Credit any Lender or Issuer or Swingline Lender hereunder, and (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in . In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender Issuers each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Revolving Credit Exposure of the Lenders shall be readjusted and reallocated 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 and participations in Letters of Credit of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans and participations in Letters of Credit in accordance with its Applicable Percentageapplicable Percentage after giving effect to such reallocation; provided that notwithstanding the foregoing, the Borrower must comply with Section 2.6.4.
Appears in 1 contract
Samples: First Lien Exit Credit Agreement (Energy XXI Gulf Coast, 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 Available unused amount of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.11;
(b) the Revolving Commitment and Credit 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 or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan or Letters of Credit Outstanding LC Exposure exists at the time a such Revolving Lender becomes a Defaulting Lender then:
(i) all or the LC Exposure (other than any part portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.04(d) and 2.04(f)) of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all nonthat any Non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Revolving Exposure and Letter of Credit Exposure does after giving effect to such reallocation would not exceed the total of all nonsuch Non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeLender’s Revolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall Borrowers shall, without prejudice to any other right or remedy available to them hereunder or under law, within one two Business Day Days following notice by the Administrative Agent (x) first, prepay cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s Swingline LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated in accordance with the procedures set forth in Section 5.2(a2.04(i) (but with the amount of cash being equal to 100% of the portion of such Defaulting Lender’s LC Exposure that has not been reallocated) for so long as such Letter of Credit LC Exposure is outstandingoutstanding or make other arrangements reasonably satisfactory to the Administrative Agent and to the applicable Issuing Bank with respect to such LC Exposure. Cash collateral (or the appropriate portion thereof) provided to reduce LC Exposure, shall be released promptly following (A) the elimination of the applicable LC Exposure, giving rise thereto (including by the termination of the Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 2.18)) or (B) the Administrative Agent’s good faith determination that there exists excess Cash collateral (including any subsequent reallocation of LC Exposure among non-Defaulting Lenders described above);
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter the LC Exposure of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) 2.11 shall be adjusted in accordance with to give effect to such nonreallocation;
(iv) if any portion of the LC Exposure of such Defaulting Lender is cash collateralized pursuant to clause (ii) above, then, during the period any such LC Exposure is cash collateralized, no participation fee shall accrue on such Defaulting Lender’s LC Exposure under Section 2.11(b) (other than, for the avoidance of doubt, any portion thereof reallocated among the Non-Defaulting Lenders’ Applicable Percentages;Lenders pursuant to clause (i) above); and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all participation fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.11(b) with respect to such portion of such Letter of Credit Defaulting Lender’s LC Exposure shall instead be payable to the Letter of Credit Issuer until such portion Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s Letter LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Revolving Lender is a Defaulting Lender, the Swingline Lender no Issuing Bank shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, Credit unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% fully covered by the Revolving Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the Borrowers or otherwise provided for in accordance with Section 2.14(c2.19(c), and participating interests in any such newly issued issued, amended, renewed or increased extended Letter of Credit or newly made Swingline Loan shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.14(c)(i2.19(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount . In the event that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject Bankruptcy Event with respect 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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 Person in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Lender is a subsidiary shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue, no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit Loans under this Agreement, (vi) sixth, unless such Issuing Bank shall have entered into arrangements with the Borrowers or the applicable Revolving Lender reasonably satisfactory to the payment of such Issuing Bank to defease any amounts owing risk to the Lenders, it in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline such Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Company and the Swingline Lender each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure LC Exposures 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 shall determine may be necessary in order for such Revolving Lender to hold such Loans in accordance with its Applicable Percentage. Notwithstanding the fact that any Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, (x) except as expressly provided in the proviso to paragraph (a) of this Section, no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of any Borrower while such Lender was a Defaulting Lender and (y) except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Knowles 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 Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.03(a);
(b) the Commitment and Outstanding 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 14.1)8.01, provided that any waiver, amendment or modification requiring other than those which require the consent of all Lenders or of each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender);
(c) if any Swingline Loan or Letters of Credit Outstanding exists LC Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(i) so long as no Default or Event of Default has occurred and is continuing, all or any part of such Swingline Loan and Letters of Credit Outstanding the LC Obligations shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures LC Obligations plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure LC Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at sum of all non-Defaulting Lenders’ Outstanding Credit Exposure plus such time;Defaulting Lender’s LC Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) firstAgent, prepay cash collateralize for the benefit of the LC Issuers only the Borrower’s obligations corresponding to such Defaulting Lender’s Swingline Exposure LC Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) by depositing funds in accordance with the procedures set forth in Section 5.2(a) Facility LC Collateral Account for so long as such Letter of Credit Exposure is LC Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure LC Obligations pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) Facility Fees or LC Fees with respect to such cash collateralized portion of Defaulting Lender’s LC Obligations during the period such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is LC Obligations are cash collateralized;
(iv) to if the extent the Letter of Credit Exposure LC Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees LC Fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.03(c) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;Pro Rata Shares; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Exposure LC Obligations is neither cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer LC Issuers or any Lender hereunder, all fees Facility Fees that otherwise would have otherwise been payable to such Defaulting Lender under pursuant to Section 4.1(b2.03(a) (solely with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is Commitment that was utilized by such LC Obligations) and LC Fees payable to such Defaulting Lender pursuant to Section 2.03(c) with respect to such Defaulting Lender’s LC Obligations shall be payable to the LC Issuers until such LC Obligations are cash collateralized and/or reallocated;
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender no LC Issuer shall not be required to fund issue or Modify any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of CreditFacility LC, 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 Borrower in accordance with Section 2.14(c2.18(c), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan Modified Facility LC shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.14(c)(i2.18(c)(i) (and Defaulting Lenders shall not participate therein); and
(viie) any amount payable the Borrower may, subject to the requirements of Sections 8.04 and 8.07, substitute for such Defaulting Lender hereunder (whether on account another financial institution, which financial institution shall be an Eligible Assignee and shall assume the Commitments of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to and purchase the Outstanding Credit Exposures held by such Defaulting Lender in accordance with Section 14.8(b8.07; provided, however, that (i) but excluding Section 14.7no Default shall have occurred and be continuing, (ii) shall, the Borrower shall have satisfied all of its obligations in lieu of being distributed connection with the Loan Documents with respect to such Defaulting Lender, be retained by the Administrative Agent in and (iii) if such assignee is not a segregated account andLender, subject to any applicable requirements of law, be applied at (A) such time or times as may be determined by the Administrative Agent (i) first, assignee is acceptable to the payment Agent and (B) the Borrower shall have paid the Agent a $3,500 administrative fee
(f) to the extent the Agent receives any payments or other amounts for the account of any amounts owing by a Defaulting Lender under the Loan Documents, such Defaulting Lender shall be deemed to have requested that the Administrative Agent hereunder, (ii) second, pro rata, use such payment or other amount to the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or Swingline Lender against such Defaulting Lender as a result of fulfill such Defaulting Lender’s breach previously unsatisfied obligations to fund a Revolving Credit Advance or any other unfunded payment obligation 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 AgreementSection 2.02(d), and 2.12(e), 2.16(d) or 7.05
(viiig) eighth, to such Defaulting no Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (x) a prepayment of the principal amount of any Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely deemed to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior have consented to being applied increase its Commitment pursuant to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting LenderSection 2.04(c) unless that Lender shall have affirmatively given consent in accordance with that Section; and
(dh) for the avoidance of doubt, the Borrower shall retain and reserve its other rights and remedies respecting each Defaulting Lender. If (i) a Bankruptcy Event or a Bail-In Action with respect to a parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) any LC 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, such LC Issuer shall not be required to Modify any Facility LC, unless such LC Issuer shall have entered into arrangements with the Borrower or such Lender, reasonably satisfactory to such LC Issuer to defease any risk to it in respect of such Lender hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Borrower and the Swingline Lender LC Issuers each agree agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders LC Obligations shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par on a ratable basis such of the Loans Outstanding Credit Exposures 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 Outstanding Credit Exposures in accordance with its Applicable PercentagePro Rata Share, whereupon such Lender shall cease to be a Defaulting Lender. For the purposes of clarity, in the event any Defaulting Lender is reinstated as a non-Defaulting Lender in accordance with the terms hereof (i) no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender, and (ii) except to the extent otherwise expressly agreed by the affected parties, such reinstatement shall not constitute a waiver or release of any claim of any party hereunder arising from such Lender having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (DTE Electric Co)
Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
: (ai) fees shall cease to accrue on the Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a);
2.3 [Unused Line Fees]; (bii) the Commitment and Credit Exposure outstanding Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.1Section
12.1 [Modifications, Amendments or Waivers]); provided, provided that any waiverthis clause (ii) shall not apply to the vote of a Defaulting Lender in the case of an amendment, amendment waiver or other modification requiring the consent of all Lenders such Lender or each Lender directly affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
thereby; (ciii) if any Swingline Loan Swing Loans are outstanding or Letters any Letter of Credit Outstanding exists Obligations exist at the time a such Lender becomes a Defaulting Lender Lender, then:
(ia) all or any part of such Swingline Loan the outstanding Swing Loans and Letters Letter of Credit Outstanding Obligations of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure Revolving Facility Usage does not exceed the total of all non-Defaulting Lenders’ Commitments Revolving Credit Commitments, and (y) the conditions set forth in Section 7 are satisfied no Potential Default or Event of Default has occurred and is continuing at such time;
; (iib) if the reallocation described in clause (ia) above cannot, or can only partially, be effected, the Borrower Borrowers shall within one Business Day following notice by the Administrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, cash collateralize for the benefit of the Issuing Lender the Borrowers’ obligations corresponding to such Defaulting Lender’s Swingline Exposure Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with a deposit account held at the procedures set forth in Section 5.2(a) Administrative Agent for so long as such Letter of Credit Exposure is Obligations are outstanding;
; (iiic) if the Borrower Borrowers cash collateralizes collateralize any portion of such Defaulting Lender’s Letter of Credit Exposure Obligations pursuant to this Section 2.14(c)clause (b) above, the Borrower Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure Obligations during the period such Defaulting Lender’s Letter of Credit Exposure is Obligations are cash collateralized;
; (ivd) to the extent if the Letter of Credit Exposure Obligations of the non-Defaulting Lenders is are reallocated pursuant to this Section 2.14(c)clause (a) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) 2.9.2 [Letter of Credit Fees] shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
Ratable Share; and (ve) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit Exposure is Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (a) or (b) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Lender or any other Lender hereunder, all fees that would have otherwise been Letter of Credit Fees payable to such Defaulting Lender under Section 4.1(b) 2.9.2 [Letter of Credit Fees] with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any Lender is a Defaulting Lender, the Swingline Lender Obligations shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting the Issuing Lender pursuant to Section 14.8(b) but excluding Section 14.7) shall, in lieu of being distributed (and not 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, until and 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, extent that such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 Obligations are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lenderreallocated and/or cash collateralized; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its 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 and ticking fees shall cease to accrue on the Available unused amount of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.12; provided, that any Term Lender that shall have funded its Term Loan as required hereunder shall be entitled to receive the ticking fees that would have accrued for its account had it not been a Defaulting Lender;
(b) the Revolving Commitment and Credit 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 or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding LC Exposure exists at the time a such Revolving Lender becomes a Defaulting Lender then:
(i) all or the Swingline Exposure (other than any part portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c)) and LC Exposure (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(d) and 2.05(f)) of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) that the sum of all nonany Non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does Revolving Exposures after giving effect to such reallocation would not exceed the total sum of all nonsuch Non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeLender’s Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall Borrowers shall, without prejudice to any other right or remedy available to them hereunder or under law, within one two Business Day Days following notice by the Administrative Agent (xA) first, prepay the portion of such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated and (yB) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s Letter of Credit 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 5.2(a2.05(i) (but with the amount of cash being equal to 100% of the portion of such Defaulting Lender’s LC Exposure that has not been reallocated) for so long as such Letter of Credit LC Exposure is outstandingoutstanding or make other arrangements reasonably satisfactory to the Administrative Agent and to the applicable Issuing Bank with respect to such LC Exposure. Cash collateral (or the appropriate portion thereof) provided to reduce LC Exposure, shall be released promptly following (A) the elimination of the applicable LC Exposure, giving rise thereto (including by the termination of the Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 2.19)) or (B) the Administrative Agent’s good faith determination that there exists excess Cash collateral (including any subsequent reallocation of LC Exposure among non-Defaulting Lenders described above);
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter the LC Exposure of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) 2.12 shall be adjusted in accordance with to give effect to such nonreallocation;
(iv) if any portion of the LC Exposure of such Defaulting Lender is cash collateralized pursuant to clause (ii) above, then, during the period any such LC Exposure is cash collateralized, no participation fee shall accrue on such Defaulting Lender’s LC Exposure under Section 2.12(c) (other than, for the avoidance of doubt, any portion thereof reallocated among the Non-Defaulting Lenders’ Applicable Percentages;Lenders pursuant to clause (i) above); and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all participation fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.12(b) with respect to such portion of such Letter of Credit Defaulting Lender’s LC Exposure shall instead be payable to the Letter of Credit Issuer until such portion Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s Letter LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer no Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be 100% fully covered by the Revolving Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the Borrowers or otherwise provided for in accordance with Section 2.14(c2.20(c), and participating interests in any such newly issued funded Swingline Loan or increased in any such issued, amended, renewed or extended Letter of Credit or newly made Swingline Loan shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.14(c)(i2.20(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount . In the event that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject Bankruptcy Event with respect to any applicable requirements Person in respect of lawwhich any Revolving Lender is a subsidiary shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue, 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, shall not be required to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in fund any Swingline Loan Loan, and such Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, (iv) fourthunless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Borrowers or the applicable Revolving Lender reasonably satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the BorrowerCompany, the Letter of Credit Issuer and the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit 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 Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Loans in accordance with its Applicable Percentage. Notwithstanding the fact that any Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, (x) except as expressly provided in the proviso to paragraph (a) of this Section, no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of any Borrower while such Lender was a Defaulting Lender and (y) except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Knowles Corp)
Defaulting Lenders. Notwithstanding (a) [Reserved]
(b) [Reserved].
(c) No Commitment of any provision Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.20, performance by the Borrower of its obligations shall not be excused or otherwise modified as a result of the operation of this Agreement Section 2.20. The rights and remedies against a Defaulting Lender under this Section 2.20 are in addition to any other rights and remedies which the contraryBorrower, if the Agent or any Lender becomes may have against such Defaulting Lender.
(d) If the Borrower and the Agent agree in writing in their reasonable determination that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, then the following provisions shall apply for Agent will so long notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender is a Defaulting Lender:
(a) fees shall cease will, to accrue on the Available Commitment extent applicable, purchase that portion of such Defaulting Lender pursuant to Section 4.1(a);
(b) outstanding Advances of the Commitment and Credit Exposure of such Defaulting Lender shall not be included in determining whether all other Lenders or take such other actions as the Required Lenders have taken or Agent may take any action hereunder (including any consent determine to any amendment or waiver pursuant be necessary to Section 14.1), provided that any waiver, amendment or modification requiring cause the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require Advances to be held on a pro rata basis by the consent of such Defaulting Lender;
(c) if any Swingline Loan or Letters of Credit Outstanding exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only Ratable Share, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent (x) otherwise expressly agreed by the sum affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of all non-Defaulting Lenders’ Credit Exposures plus any claim of any party hereunder arising from such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (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 such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise having been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.14(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 2.14(c)(i) (and Defaulting Lenders shall not participate therein); and.
(viie) Notwithstanding anything to the contrary contained in this Agreement, any amount payable to such Defaulting Lender hereunder (whether on account payment of principal, interest, commitment fees or otherwise and including other amounts received by the Agent for the account of any amount that would otherwise be payable to such Defaulting Lender under this Agreement (whether voluntary or mandatory, at maturity, pursuant to Section 14.8(bArticle VI or otherwise) but excluding Section 14.7) 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, shall be applied at such time or times as may be reasonably determined by the Administrative Agent (i) as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) ; second, pro rata, to as the payment of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer or Swingline Lender hereunder, Borrower may request (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account long as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourthno Default exists), to the funding of any Loan Advance in respect of which such that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as reasonably determined by the Administrative Agent, (v) fifth; third, if so reasonably determined by the Administrative Agent and the Borrower, to be held in such a pledged account as cash collateral for future funding and released in order to satisfy obligations of the such Defaulting Lender of any Revolving Credit Loans to fund Advances under this Agreement, (vi) sixth; fourth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, (vii) seventhso long as no Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, ; and (viii) eighthsixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is (x) a prepayment payment of the principal amount of any Revolving Credit Loans or drawings Advance in respect of Letter of Credits for which a such Defaulting Lender has not fully funded its participation obligations appropriate share, and (y) such Advances were made at a time when the applicable conditions set forth in Section 7 are satisfiedArticle III were satisfied or waived, such payment shall be applied solely to prepay pay the Revolving Credit Loans of, and reimbursement obligations owed to, Advances of all nonNon-Defaulting Lenders on a pro rata basis prior to being applied to the prepayment payment of any Revolving Credit Loans, or reimbursement Advances of such Defaulting Lender and provided further that any amounts held as cash collateral for funding obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused 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 be a Defaulting Lender, then Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.20 shall be deemed paid to and redirected by such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such each Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentageirrevocably consents hereto.
Appears in 1 contract
Samples: Term Loan Agreement (Xerox 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 Available unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 4.1(a)2.5;
(b) the Commitment and Outstanding 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 14.18.2), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which that affects such Defaulting Lender differently than each other applicable Lender affected Lenders shall require the consent of such Defaulting Lender;
(c) if any Swingline Loan Swing Line Loans shall be outstanding or Letters of Credit Outstanding exists any LC Obligations exist at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of the unfunded participations in and commitments with respect to such Swingline Loan and Letters of Credit Outstanding Swing Line Loans or LC Obligations shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ Outstanding Credit Exposures Exposure plus such Defaulting Lender’s Swingline Exposure Lenders’ Loans and Letter of Credit Exposure participations in and commitments with respect to Loans and Facility LCs does not exceed the total of all non-Defaulting Lenders’ Lender’s Commitments and (y) the conditions set forth in Section 7 Article IV are satisfied at such time; provided, that the Standby LC Fees payable to the Lenders shall be determined taking into account any such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such the Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) Revolving Percentage of the outstanding Swing Line Loans that were not reallocated and (y) second, cash collateralize such Defaulting Lender’s Letter Pro Rata Share of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) the LC Obligations in accordance with the procedures set forth in Section 5.2(a) 8.1 for so long as such Letter of Credit Facility LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Facility LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.19(d) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Facility LC Exposure during the period such Letter of Credit Defaulting Lender’s Facility LC Exposure is cash collateralized;collateralized by the Borrower; and
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent if any Defaulting Lender’s Letter of Credit Facility LC Exposure is neither not cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer applicable LC Issuer(s) or any Lender hereunder, all letter of credit fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.19(d) with respect to such Defaulting Lender’s Facility LC Exposure that have been reallocated to the other Lenders (and, for clarification, not any portion of such Letter of Credit Exposure that has been cash collateralized) shall instead be payable to the Letter of Credit Issuer non-defaulting Lenders and the applicable LC Issuer(s) (to the extent not reallocated to the non-defaulting Lenders) until such portion of such Defaulting Lender’s Letter of Credit Facility LC Exposure is cash collateralized and/or reallocatedcollateralized;
(vid) so long as any Lender is a Defaulting Lender, the Swingline Lender no LC Issuer shall not be required to fund issue or Modify any Swingline Loan and the Letter of Credit Issuer shall not be required to issue, amend or increase any Letter of CreditFacility LC, 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 Borrower in accordance with Section 2.14(c), and participating interests in any such newly issued 2.22(c) or increased Letter of Credit or newly made Swingline Loan shall will be allocated among to non-Defaulting defaulting Lenders in a manner consistent accordance with Section 2.14(c)(i) (and Defaulting Lenders shall not participate therein2.22(c); and
(viie) 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 14.8(b) 11.2 but excluding Section 14.72.20) 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 are 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 Letter of Credit Issuer LC Issuers or Swingline Swing Line Lender hereunder, (iii) third, if so determined by to the Administrative Agent funding of any Revolving Loan or requested by a Letter of Credit Issuer the funding or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting Lender collateralization of any participating interest in any Swingline Swing Line Loan or Letter of Credit, (iv) fourth, to the funding of any Loan 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 Administrative Agent, (viv) fifthfourth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (viv) sixthfifth, pro rata, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (viivi) seventhsixth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, if so determined by the Administrative Agent, distributed to the Lenders other than the Defaulting Lender until the ratio of the Outstanding Credit Exposure of such Lenders to the Aggregate Outstanding Exposure equals such ratio immediately prior to the Defaulting Lender’s failure to fund any portion of any Loans or participations in Facility LCs or Swing Line Loans and (viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided provided, that if such payment is (x) a prepayment of the principal amount of any Revolving Credit Loans or drawings Reimbursement Obligations in respect of Letter of Credits for draws under Facility LCs with respect to which a Defaulting Lender the applicable LC Issuer(s) has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfiedobligations, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations Reimbursement Obligations owed to, all non-Lenders that are not Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations Reimbursement Obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Defaulting Lenders. Notwithstanding any provision of this Agreement any Loan Document to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the Available unused 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 the Required Lenders or the Required any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender Lender, then:
(i) all or the Swingline Exposure (other than any part portion thereof with respect to which such Defaulting Lender shall have funded its participation as contemplated by Section 2.04(c)) and LC Exposure of such Swingline Loan Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.05(d) and Letters of Credit Outstanding 2.05(e)) shall be reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the nonNon-Defaulting Lenders in accordance with their respective Applicable Percentages (for the purposes of such reallocation, such Defaulting Lender’s Commitment shall be disregarded in determining the Non-Defaulting Lenders’ respective Applicable Percentages), but only to the extent that (xA) the sum of all nonNon-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total sum of all nonNon-Defaulting Lenders’ Commitments and (yB) the conditions set forth in Section 7 are satisfied at after giving effect to any such timereallocation, no Non-Defaulting Lender’s Revolving Credit Exposure shall exceed such Non-Defaulting Lender’s Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall shall, within one three Business Day Days following the Borrower’s receipt of written notice by from the Administrative Agent Agent, (xA) first, prepay such Defaulting Lender’s Swingline Exposure (after giving effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) above) that has not been reallocated and (yB) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 5.2(a2.05(k) for the benefit of the applicable Issuing Banks the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b2.11(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period such Letter portion of Credit such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if any portion of the extent the Letter of Credit LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b2.11(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentages;reallocation; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer any Issuing Bank or any other Lender hereunder, all Letter of Credit participation fees that otherwise would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.11(b) with respect to such portion of such Letter of Credit Defaulting Lender’s unreallocated LC Exposure shall instead be payable to the Letter of Credit Issuer until such Issuing Banks, ratably based on the portion of such Defaulting Lender’s Letter LC Exposure attributable to Letters of Credit issued by each Issuing Bank, until and to the extent that such LC Exposure is reallocated and/or cash collateralized and/or reallocatedpursuant to clause (i) or (ii) above;
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer no Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, in each case, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be 100% covered by the Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.19(c), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan or any newly issued, amended, renewed or extended Letter of Credit shall be allocated among nonNon-Defaulting Lenders in a manner consistent with Section 2.14(c)(i2.19(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
(vii) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount . In the event that would otherwise be payable to such Defaulting Lender pursuant to Section 14.8(b) but excluding Section 14.7) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject Bankruptcy Event with respect to any applicable requirements of lawLender Parent shall have occurred following the Effective Date and for so long as such Bankruptcy Event shall continue, no Issuing Bank shall be applied at such time required to issue, amend, extend, renew or times as may be determined by the Administrative Agent (i) first, to the payment of increase 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer 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) fourthand the Swingline Lender shall not be required to fund any Swingline Loan, unless such Issuing Bank or the Swingline Lender shall have entered into arrangements with the Borrower or the applicable Lender reasonably satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender and each agree Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure Exposures and Letter of Credit Exposure LC Exposures of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment Commitment, and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans in accordance with its Applicable Percentage. The rights and remedies against, and with respect to, a Defaulting Lender under this Section 2.19 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Lender, each Issuing Bank, the Swingline Lender, the Borrower or any other Loan Party may at any time have against, or with respect to, such Defaulting Lender.
Appears in 1 contract
Samples: Revolving Credit Agreement (Marathon Petroleum 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 Available Commitment of such Defaulting Lender pursuant to Section 4.1(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 14.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall require the consent of such Defaulting Lender;
(c) if any Swingline Loan Swing Line Loans are outstanding or Letters of Credit Outstanding exists any LC Obligations exist at the time a Lender becomes is a Defaulting Lender then:
(i) all or any part of such Swingline Loan and Letters of Credit Outstanding shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower Company shall within one (1) Business Day following notice by the Administrative Agent (xi) first, prepay such the Defaulting Lender’s Swingline Exposure (after giving effect Pro Rata Share of such outstanding Swing Line Loans or, if agreed by the Swing Line Lender, cash collateralize the Pro Rata Share of the obligations of such Defaulting Lender to any partial reallocation pursuant purchase participations in Swing Line Loans on terms satisfactory to clause (i) above) the Swing Line Lender and (yii) second, cash collateralize such Defaulting Lender’s Letter Pro Rata Share of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) the LC Obligations in accordance with the procedures set forth in Section 5.2(a) 2.21.11 for so long as such Letter of Credit Exposure is LC Obligations are outstanding;; and
(iiib) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 4.1(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(iv) to the extent the Letter of Credit Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.14(c), then the fees payable to the Lenders pursuant to Section 4.1(a) and Section 4.1(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages;
(v) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.14(c), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Lender hereunder, all fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Letter of Credit Issuer until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized and/or reallocated;
(vi) so long as any Lender is a Defaulting Lender, the Swingline Swing Line Lender shall not be required to fund any Swingline Swing Line Loan and the Letter of Credit Issuer no Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, Facility LC 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 Company in accordance with Section 2.14(c), and participating interests in any 2.27(a) for the Defaulting Lender’s Pro Rata Share of such newly issued Swing Line Loan or increased Letter of Credit or newly made Swingline Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.14(c)(i) (and Defaulting Lenders shall not participate therein); andFacility LC.
(viic) any amount payable Anything contained herein to the contrary notwithstanding, the Borrowers shall have the right to replace such Defaulting Lender hereunder (in accordance with Section 2.20 regardless of whether on account of principal, interest, fees a Default or otherwise Unmatured Default shall be continuing. The rights and including any amount that would otherwise be payable to such remedies against a Defaulting Lender pursuant under this Section 2.27 are in addition to Section 14.8(b) but excluding Section 14.7) shallother rights and remedies which Borrowers, 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 Letter of Credit Issuer or Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, to be held in such account as cash collateral for future funding obligations of the Defaulting any other Lender of any participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer or Swingline Lender may have against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, (vii) seventh, with respect 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer and the Swingline Lender each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentagefunding default.
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 cease to accrue on the Available unused amount of the Commitment of such Defaulting Lender pursuant to Section 4.1(a2.11(a);
(b) the Commitment and Credit Revolving Exposure of such Defaulting Lender shall not be included in determining whether all the Required Lenders or the Required any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment amendment, waiver or waiver other modification pursuant to Section 14.19.02), ; provided that any waiveramendment, amendment waiver or other modification requiring the consent of all Lenders or each all Lenders affected Lender which affects such Defaulting Lender differently than each other applicable Lender shall thereby shall, except as otherwise provided in Section 9.02, require the consent of such Defaulting LenderLender in accordance with the terms hereof;
(c) if any Swingline Loan Exposure or Letters of Credit Outstanding LC Exposure exists at the time a such Lender becomes a Defaulting Lender then:
(i) all or any part the Swingline Exposure and LC Exposure of such Swingline Loan and Letters of Credit Outstanding Defaulting Lender shall be reallocated among the nonNon-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) that the sum of all nonNon-Defaulting Lenders’ Credit Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and Letter of Credit LC Exposure does not exceed the total sum of all nonNon-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 7 are satisfied at such timeCommitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Administrative Agent (xA) first, prepay the portion of such Defaulting Lender’s Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) that has not been reallocated and (yB) second, cash collateralize for the benefit of the Issuing Bank the portion of such Defaulting Lender’s Letter of Credit 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 5.2(a2.05(i) for so long as such Letter of Credit LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14(c)clause (ii) above, the Borrower shall not be required to pay any participation fees to such Defaulting Lender pursuant to Section 4.1(b2.11(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit LC Exposure during the period for so long as such Letter of Credit Defaulting Lender’s LC Exposure is cash collateralized;
(iv) to if any portion of the extent the Letter of Credit LC Exposure of the non-such Defaulting Lenders Lender is reallocated pursuant to this Section 2.14(c)clause (i) above, then the fees payable to the Lenders pursuant to Section 4.1(aSections 2.11(a) and Section 4.1(b2.11(b) shall be adjusted in accordance with to give effect to such non-Defaulting Lenders’ Applicable Percentages;reallocation; and
(v) to the extent if all or any portion of such Defaulting Lender’s Letter of Credit LC Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to this Section 2.14(c)clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuer Issuing Bank or any other Lender hereunder, all participation fees that would have otherwise been payable to such Defaulting Lender under Section 4.1(b2.11(b) with respect to such portion of such Letter of Credit Defaulting Lender’s LC Exposure shall instead be payable to the Letter of Credit Issuer Issuing Bank until and to the extent that such portion of such Defaulting Lender’s Letter of Credit LC Exposure is reallocated and/or cash collateralized and/or reallocated;collateralized; and
(vid) so long as any such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuer no Issuing Bank shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless unless, in each case, it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be 100% fully covered by the Commitments of the nonNon-Defaulting Lenders and/or cash collateral will be provided by the Borrowers Borrower in accordance with Section 2.14(c2.19(c), and participating interests in any such newly issued funded Swingline Loan or increased in any such issued, amended, renewed or extended Letter of Credit or newly made Swingline Loan shall will be allocated among nonthe Non-Defaulting Lenders in a manner consistent with Section 2.14(c)(i2.19(c)(i) (and such Defaulting Lenders Lender shall not participate therein); and
. In the event that (viix) any amount payable a Bankruptcy Event with respect to a Lender Parent shall have occurred following the date hereof and for so long as such Defaulting Lender hereunder Bankruptcy Event shall continue or (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 14.8(by) but excluding Section 14.7) 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 Letter of Credit Issuer or Swingline Lender hereunderor 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, (iii) third, if so determined by the Administrative Agent or requested by a Letter of Credit Issuer or Swingline Lender, Lender shall not be required to be held in such account as cash collateral for future funding obligations of the Defaulting Lender of any participating interest in fund any Swingline Loan Loan, and the Issuing Bank shall not be required to issue, amend, renew or extend any Letter of Credit, (iv) fourthunless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Borrower or the applicable Lender satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to the funding of defease any Loan risk to it in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, in respect of obligations under this Agreement, a Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, such Letter of Credit Issuer 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 Revolving Credit Loans or drawings in respect of Letter of Credits for which a Defaulting Lender has funded its participation obligations and (y) made at a time when the conditions set forth in Section 7 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and reimbursement obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Revolving Credit Loans, or reimbursement obligations owed to, any Defaulting Lender; and
(d) in hereunder. In the event that the Administrative Agent, the Borrower, the Letter of Credit Issuer Swingline Lender and the Swingline Lender Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall cease to be a Defaulting Lender, and the Swingline Exposure and Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Shutterfly Inc)
