Common use of Defaulting Purchasers Clause in Contracts

Defaulting Purchasers. Anything contained herein to the contrary notwithstanding, in the event that any Purchaser, other than at the direction or request of any regulatory agency or authority, defaults in its obligation to purchase (a “Defaulting Purchaser”) any Note (in each case, a “Defaulted Purchase Obligation”), then (a) except to the extent such Purchaser’s vote is required under Section 10.5(b), during any Default Period with respect to such Defaulting Purchaser, such Defaulting Purchaser shall be deemed not to be a “Purchaser” for purposes of voting on any matters (including the granting of any consents or waivers) with respect to any of the Note Documents; (b) to the extent permitted by applicable law, until such time as the Default Excess, if any, with respect to such Defaulting Purchaser shall have been reduced to zero, (i) any voluntary prepayment of the Notes shall, if Requisite Purchasers so direct at the time of making such voluntary prepayment, be applied to the Notes of other Purchasers as if such Defaulting Purchaser had no Notes outstanding and the outstanding Notes of such Defaulting Purchaser were zero, and (ii) any mandatory prepayment of the Notes shall, if Requisite Purchasers so direct at the time of making such mandatory prepayment, be applied to the Notes of other Purchasers (but not to the Notes of such Defaulting Purchaser) as if such Defaulting Purchaser had honored all of its Defaulted Purchase Obligations, it being understood and agreed that any portion of any mandatory prepayment of the Notes that is not paid to such Defaulting Purchaser solely as a result of the operation of the provisions of this clause (b) shall be paid to the non-Defaulting Purchasers on a ratable basis; (c) such Defaulting Purchaser’s Commitments shall be excluded for purposes of calculating the commitment fee payable to Purchasers in respect of any day during any Default Period with respect to such Defaulting Purchaser, and such Defaulting Purchaser shall not be entitled to receive any commitment fee pursuant to Section 2.10 with respect to such Defaulting Purchaser’s Commitment in respect of any Default Period with respect to such Defaulting Purchaser. No Commitment of any Purchaser shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.21, performance by Company of its obligations hereunder and the other Note Documents shall not be excused or otherwise modified as a result of any Purchaser becoming a Defaulting Purchaser or the operation of this Section 2.21.

Defaulting Purchasers. Anything contained herein Notwithstanding any provision of this Agreement to the contrary notwithstandingcontrary, in the event that if any Purchaser becomes a Defaulting Purchaser, other than at then the direction or request of any regulatory agency or authority, defaults in its obligation to purchase (following provisions shall apply for so long as such Purchaser is a “Defaulting Purchaser”) any Note (in each case, a “Defaulted Purchase Obligation”), then : (a) except Commitment Fees (as defined in the Fee Letter) shall cease to accrue on the extent such Purchaser’s vote is required under Section 10.5(b), during any Default Period with respect to such Defaulting Purchaser, such Defaulting Purchaser shall be deemed not to be a “Purchaser” for purposes of voting on any matters (including the granting of any consents or waivers) with respect to any unfunded portion of the Note Documents; (b) to the extent permitted by applicable law, until such time as the Default Excess, if any, with respect to such Defaulting Purchaser shall have been reduced to zero, (i) any voluntary prepayment of the Notes shall, if Requisite Purchasers so direct at the time of making such voluntary prepayment, be applied to the Notes of other Purchasers as if such Defaulting Purchaser had no Notes outstanding and the outstanding Notes Commitment of such Defaulting Purchaser were zero, and each other Purchaser in the same Group. (iib) any mandatory prepayment of the Notes shall, if Requisite Purchasers so direct at the time of making such mandatory prepayment, be applied to the Notes of other Purchasers (but not to the Notes The Commitment and Capital of such Defaulting Purchaser) Purchaser and each other Purchaser in the same Group shall not be included in determining whether the Majority Group Agents have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 14.01); provided, that, except as if such Defaulting Purchaser had honored all of its Defaulted Purchase Obligationsotherwise provided in Section 14.01, it being understood and agreed that any portion of any mandatory prepayment of the Notes that is not paid to such Defaulting Purchaser solely as a result of the operation of the provisions of this clause (b) shall be paid not apply to the non-vote of a Defaulting Purchasers on a ratable basis; Purchaser (or other Purchaser in the same Group) in the case of an amendment, waiver or other modification requiring the consent of such Purchaser or each Purchaser directly affected thereby (if such Purchaser is directly affected thereby). (c) In the event that one or more Committed Purchasers fails to fund any portion of its Investments (or the Capital thereof) by 8:00 a.m. (New York City time) on the Business Day following the date of the Investment specified in the related Investment Request, the Administrative Agent shall notify each of the other Committed Purchasers not later than 11:00 a.m. (New York City time) on such Defaulting Business Day, and each of the other Committed Purchasers (or the Related Conduit Purchasers on their behalf) shall, upon satisfaction of the applicable conditions set forth in Article VI and pursuant to the other conditions set forth in this Article II, make available to the Seller a supplemental Investment in an amount equal to the lesser of (a) the aggregate Capital of the related Investment Request that was unfunded multiplied by such Committed Purchaser’s Commitments shall be excluded Percentage (which for purposes of calculating this clause will not include the commitment fee payable aggregate Commitment of the Committed Purchaser failing to make the Investment on such prior Business Day) and (b) the excess of (i) such Committed Purchaser’s Commitment over (ii) the product of such Committed Purchaser’s related Percentage multiplied by all outstanding Commitments (after giving effect to the supplemental Investment on such date). In the event that the Committed Purchasers that originally failed to fund their Investments in respect of any day during any Default Period with respect to a applicable Investment Request, have not otherwise cured such Defaulting Purchaserfailure, and such Defaulting Purchaser shall not be entitled to receive any commitment fee pursuant to Section 2.10 with respect to such Defaulting Purchaser’s Commitment in respect of any Default Period with respect to such Defaulting Purchaser. No Commitment of any Purchaser supplemental Investments shall be increased or otherwise affected, and, except as otherwise expressly provided made by wire transfer to the Administrative Agent in this Section 2.21, performance Dollars in same day funds no later than 12:00 p.m. (New York City time) on the Business Day that is two (2) Business Days following the Business Day on which the notice described in the preceding sentence was received by Company of its obligations hereunder and the other Note Documents shall not be excused or otherwise modified as a result of any such Committed Purchaser becoming a Defaulting Purchaser or the operation of this Section 2.21.(it being

Defaulting Purchasers. Anything contained herein Notwithstanding anything to the contrary notwithstandingin this Agreement or the other Transaction Documents, the Agent shall not be obligated to transfer to a Defaulting Purchaser any payments made by the Seller for such Defaulting Purchaser’s benefit or any proceeds of Collateral that would otherwise be remitted hereunder for the account of such Defaulting Purchaser, and, in the event that any absence of such transfer for the account of the Defaulting Purchaser, other than at the direction or request Agent shall transfer any such payments (A) first, to the payment of any regulatory agency or authorityamounts owing by such Defaulting Purchaser to the Agent hereunder; (B) second, defaults to repay the Agent any amounts funded in its obligation to purchase (a “respect of such Defaulting Purchaser”, together with any accrued and unpaid CP Costs or Yield thereon; (C) any Note third, as the Seller may request (in each case, a “Defaulted Purchase Obligation”so long as no Amortization Event or Potential Amortization Event shall have occurred and be continuing), then (a) except to the extent funding of any Incremental Purchase in respect of which such Defaulting Purchaser has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; (D) fourth, if so determined by the Agent and the Seller (so long as no Amortization Event or Potential Amortization Event shall have occurred and be continuing), to be held in a separately established deposit account subject to the control of the Agent, and released from time to time in order to satisfy such Defaulting Purchaser’s vote is required under Section 10.5(b), during any Default Period potential future funding obligations with respect to Incremental Purchases under this Agreement; (E) fifth, so long as no Amortization Event or Potential Amortization Event shall have occurred and be continuing, to the payment of any amounts owing to the Seller as a result of any judgment of a court of competent jurisdiction obtained by the Seller against such Defaulting Purchaser as a result of such Defaulting Purchaser’s breach of its obligations under this Agreement; and (F) sixth, to such Defaulting Purchaser or as otherwise directed by a court of competent jurisdiction; provided that if such payment is a payment of the principal amount of any Capital outstanding in respect of any such Incremental Purchases, such payment shall be applied solely to pay the outstanding Capital of all Non-Defaulting Purchasers, on a pro rata basis, prior to being applied to the payment of any outstanding Capital of such Defaulting Purchaser until such time as all outstanding Capital is held by the Purchasers pro rata in accordance with the applicable Commitments. Solely for the purposes of voting or consenting to matters with respect to the Transaction Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee (other than the Used Fee) payable under clause (i) of Section 2.1, such Defaulting Purchaser shall be deemed not to be a “Purchaser” for purposes of voting on any matters (including and such Purchaser’s Commitment shall be deemed to be zero; provided, that the granting of any consents or waivers) with respect foregoing shall not apply to any of the Note Documents; matters governed by clauses (bA) to the extent permitted by applicable law, until such time as the Default Excess, if any, or (B) of Section 13.1(b)(i). The provisions of this Section 12.4 shall remain effective with respect to such Defaulting Purchaser until the earlier of (y) the date on which all of the Non-Defaulting Purchasers, the Agent and the Seller shall have been reduced to zerowaived, (i) any voluntary prepayment of in writing, the Notes shall, if Requisite Purchasers so direct at the time of making such voluntary prepayment, be applied to the Notes of other Purchasers as if such Defaulting Purchaser had no Notes outstanding and the outstanding Notes of such Defaulting Purchaser were zero, and (ii) any mandatory prepayment of the Notes shall, if Requisite Purchasers so direct at the time of making such mandatory prepayment, be applied to the Notes of other Purchasers (but not to the Notes of such Defaulting Purchaser) as if such Defaulting Purchaser had honored all of its Defaulted Purchase Obligations, it being understood and agreed that any portion of any mandatory prepayment of the Notes that is not paid to such Defaulting Purchaser solely as a result of the operation of the provisions application of this clause (b) shall be paid to the non-Defaulting Purchasers on a ratable basis; (c) such Defaulting Purchaser’s Commitments shall be excluded for purposes of calculating the commitment fee payable to Purchasers in respect of any day during any Default Period with respect Section 12.4 to such Defaulting Purchaser, or (z) the date on which such Defaulting Purchaser makes payment of all amounts that it was obligated to fund hereunder, pays to the Agent all amounts owing by such Defaulting Purchaser in respect of the amounts that it was obligated to fund hereunder and, if requested by the Agent, provides adequate assurance of its ability to perform its future obligations hereunder. The operation of this Section 12.4 shall not be construed to increase or otherwise affect the Commitment of any Purchaser, to relieve or excuse the performance by such Defaulting Purchaser or any other Purchaser of its duties and obligations hereunder, or to relieve or excuse the performance by any Seller Party of its duties and obligations hereunder to the Agent or to the Purchasers other than to such Defaulting Purchaser. Any failure by a Defaulting Purchaser to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Purchaser of this Agreement and shall entitle Seller, at its option, upon written notice to the Agent, to arrange for a substitute Purchaser Group to assume the Commitment of such Defaulting Purchaser’s Purchaser Group, such substitute Purchaser Group to be reasonably acceptable to the Agent. In connection with the arrangement of such a substitute Purchaser Group, (i) the Defaulting Purchaser’s Purchaser Group shall have no right to refuse to be replaced hereunder and (ii) the Company in the Defaulting Purchaser’s Purchaser Group shall have no right to consent to the assignment in respect of such Defaulting Purchaser. In such circumstance, the Defaulting Purchaser’s Purchaser Group agrees to execute and deliver a completed Assignment Agreement in favor of the substitute Purchaser (and agrees that it shall be deemed to have executed and delivered such documentation if it fails RECEIVABLES PURCHASE AGREEMENT to do so), subject only in each case to being paid its share of the outstanding Obligations (but not any fee (other than the Used Fee) payable under clause (i) of Section 2.1 during such time as the Purchaser was a Defaulting Purchaser); provided, that any such assumption of the Commitment of such Defaulting Purchaser shall not be entitled deemed to receive constitute a waiver of any commitment fee pursuant to Section 2.10 with respect of the other Purchasers’ or any Seller Party’s rights or remedies against any such Defaulting Purchaser arising out of or in relation to such Defaulting Purchaser’s Commitment in respect failure to fund. In the event of any Default Period with respect to such Defaulting Purchaser. No Commitment of any Purchaser shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.21, performance by Company of its obligations hereunder and a direct conflict between the other Note Documents shall not be excused or otherwise modified as a result of any Purchaser becoming a Defaulting Purchaser or the operation priority provisions of this Section 2.2112.4 and any other provision contained in this Agreement or any other Transaction Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 12.4 shall control and govern.

Defaulting Purchasers. Anything contained herein Notwithstanding anything to the contrary notwithstandingin this Agreement or the other Transaction Documents, the Agent shall not be obligated to transfer to a Defaulting Purchaser any payments made by the Seller for such Defaulting Purchaser’s benefit or any proceeds of Collateral that would otherwise be remitted hereunder for the account of such Defaulting Purchaser, and, in the event that any absence of such transfer for the account of the Defaulting Purchaser, other than at the direction or request Agent shall transfer any such payments (A) first, to the payment of any regulatory agency or authorityamounts owing by such Defaulting Purchaser to the Agent hereunder; (B) second, defaults to repay the Agent any amounts funded in its obligation to purchase (a “respect of such Defaulting Purchaser”, together with any accrued and unpaid CP Costs or Yield thereon; (C) any Note third, as the Seller may request (in each case, a “Defaulted Purchase Obligation”so long as no Amortization Event or Potential Amortization Event shall have occurred and be continuing), then (a) except to the extent funding of any Incremental Purchase in respect of which such Defaulting Purchaser has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; (D) fourth, if so determined by the Agent and the Seller (so long as no Amortization Event or Potential Amortization Event shall have occurred and be continuing), to be held in a separately established deposit account subject to the control of the Agent, and released from time to time in order to satisfy such Defaulting Purchaser’s vote is required under Section 10.5(b), during any Default Period potential future funding obligations with respect to Incremental Purchases under this Agreement; (E) fifth, so long as no Amortization Event or Potential Amortization Event shall have occurred and be continuing, to the payment of any amounts owing to the Seller as a result of any judgment of a court of competent jurisdiction obtained by the Seller against such Defaulting Purchaser as a result of such Defaulting Purchaser’s breach of its obligations under this Agreement; and (F) sixth, to such Defaulting Purchaser or as otherwise directed by a court of competent jurisdiction; provided that if such payment is a payment of the principal amount of any Capital outstanding in respect of any such Incremental Purchases, such payment shall be applied solely to pay the outstanding Capital of all Non-Defaulting Purchasers, on a pro rata basis, prior to being applied to the payment of any outstanding Capital of such Defaulting Purchaser until such time as all outstanding Capital is held by the Purchasers pro rata in accordance with the applicable Commitments. Solely for the purposes of voting or consenting to matters with respect to the Transaction Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee (other than the Used Fee) payable under clause (i) of Section 2.1, such Defaulting Purchaser shall be deemed not to be a “Purchaser” for purposes of voting on any matters (including and such Purchaser’s Commitment shall be deemed to be zero; provided, that the granting of any consents or waivers) with respect foregoing shall not apply to any of the Note Documents; matters governed by clauses (bA) to the extent permitted by applicable law, until such time as the Default Excess, if any, or (B) of Section 13.1(b)(i). The provisions of this Section 12.4 shall remain effective with respect to such Defaulting Purchaser until the earlier of (y) the date on which all of the Non-Defaulting Purchasers, the Agent and the Seller shall have been reduced to zerowaived, (i) any voluntary prepayment of in writing, the Notes shall, if Requisite Purchasers so direct at the time of making such voluntary prepayment, be applied to the Notes of other Purchasers as if such Defaulting Purchaser had no Notes outstanding and the outstanding Notes of such Defaulting Purchaser were zero, and (ii) any mandatory prepayment of the Notes shall, if Requisite Purchasers so direct at the time of making such mandatory prepayment, be applied to the Notes of other Purchasers (but not to the Notes of such Defaulting Purchaser) as if such Defaulting Purchaser had honored all of its Defaulted Purchase Obligations, it being understood and agreed that any portion of any mandatory prepayment of the Notes that is not paid to such Defaulting Purchaser solely as a result of the operation of the provisions application of this clause (b) shall be paid to the non-Defaulting Purchasers on a ratable basis; (c) such Defaulting Purchaser’s Commitments shall be excluded for purposes of calculating the commitment fee payable to Purchasers in respect of any day during any Default Period with respect Section 12.4 to such Defaulting Purchaser, or (z) the date on which such Defaulting Purchaser makes payment of all amounts that it was obligated to fund hereunder, pays to the Agent all amounts owing by such Defaulting Purchaser in respect of the amounts that it was obligated to fund hereunder and, if requested by the Agent, provides adequate assurance of its ability to perform its future obligations hereunder. The operation of this Section 12.4 shall not be construed to increase or otherwise affect the Commitment of any Purchaser, to relieve or excuse the performance by such Defaulting Purchaser or any other Purchaser of its duties and obligations hereunder, or to relieve or excuse the performance by any Seller Party of its duties and obligations hereunder to the Agent or to the Purchasers other than to such Defaulting Purchaser. Any failure by a Defaulting Purchaser to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Purchaser of this Agreement and shall entitle Seller, at its option, upon written notice to the Agent, to arrange for a substitute Purchaser Group to assume the Commitment of such Defaulting Purchaser’s Purchaser Group, such substitute Purchaser Group to be reasonably acceptable to the Agent. In connection with the arrangement of such a substitute Purchaser Group, (i) the Defaulting Purchaser’s Purchaser Group shall have no right to refuse to be replaced hereunder and (ii) the Company in the Defaulting Purchaser’s Purchaser Group shall have no right to consent to the assignment in respect of such Defaulting Purchaser. In such circumstance, the Defaulting Purchaser’s Purchaser Group agrees to execute and deliver a completed Assignment Agreement in favor of the substitute Purchaser (and agrees that it shall be deemed to have executed and delivered such documentation if it fails to do so), subject only in each case to being paid its share of the outstanding Obligations (but not any fee (other than the Used Fee) payable under clause (i) of Section 2.1 during such time as the Purchaser was a Defaulting Purchaser); provided, that any such assumption of the Commitment of such Defaulting Purchaser shall not be entitled deemed to receive constitute a waiver of any commitment fee pursuant to Section 2.10 with respect of the other Purchasers’ or any Seller Party’s rights or remedies against any such Defaulting Purchaser arising out of or in relation to such Defaulting Purchaser’s Commitment in respect failure to fund. In the event of any Default Period with respect to such Defaulting Purchaser. No Commitment of any Purchaser shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.21, performance by Company of its obligations hereunder and a direct conflict between the other Note Documents shall not be excused or otherwise modified as a result of any Purchaser becoming a Defaulting Purchaser or the operation priority provisions of this Section 2.2112.4 and any other provision contained in this Agreement or any other Transaction Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 12.4 shall control and govern.

Defaulting Purchasers. Anything contained herein to the contrary notwithstanding, in the event that any Purchaser, other than at the direction or request of any regulatory agency or authority, defaults in its obligation to purchase (a “Defaulting Purchaser”) in its obligation to fund (a “Funding Default”) any Note (in each case, a “Defaulted Purchase ObligationNote”), then (a) except to the extent such Purchaser’s vote is required under Section 10.5(b), during any Default Period with respect to such Defaulting Purchaser, such Defaulting Purchaser shall be deemed not to be a “Purchaser” or “Holder” for purposes of voting on any matters (including the granting of any consents or waivers) with respect to any of the Note DocumentsCredit Documents and shall not be entitled to receive or retain any Commitment Fee that is payable to or for the account of such Purchaser; (b) to the extent permitted by applicable law, until such time as the Default Excess, if any, Excess with respect to such Defaulting Purchaser shall have been reduced to zero, (i) any voluntary prepayment of the Notes shall, if Requisite Purchasers Note Agent so direct directs at the time of making such voluntary prepayment, be applied to the Notes of other Purchasers Holders as if such Defaulting Purchaser had held no Notes outstanding and the outstanding Notes of such Defaulting Purchaser were zeroNotes, and (ii) any mandatory prepayment of the Notes shall, if Requisite Purchasers Note Agent so direct directs at the time of making such mandatory prepayment, be applied to the Notes of other Purchasers Holders (but not to the Notes of such Defaulting Purchaser) as if such Defaulting Purchaser had honored funded all Defaulted Notes of its Defaulted Purchase Obligationssuch Defaulting Purchaser, it being understood and agreed that any portion of any mandatory prepayment of the Notes that is not paid to such Defaulting Purchaser solely as a result of the operation of the provisions of this clause (b) shall be paid applied to the non-Defaulting Purchasers on a ratable basis; Notes of other Holders (c) but not to the Notes of such Defaulting Purchaser) based on each such Holder’s Commitments shall be excluded for purposes of calculating the commitment fee payable to Purchasers in respect of any day during any Default Period with respect to such Defaulting Purchaser, and such Defaulting Purchaser shall not be entitled to receive any commitment fee pursuant to Section 2.10 with respect to such Defaulting Purchaser’s Commitment in respect of any Default Period with respect to such Defaulting PurchaserPro Rata Share thereof. No Commitment of any Purchaser shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.212.20, performance by Company Co-Issuers of its obligations hereunder and the other Note Credit Documents shall not be excused or otherwise modified as a result of any Purchaser becoming a Defaulting Purchaser Funding Default or the operation of this Section 2.212.20. The rights and remedies against a Defaulting Purchaser under this Section 2.20 are in addition to other rights and remedies which Co-Issuers may have against such Defaulting Purchaser with respect to any Funding Default and which Note Agent or any Purchaser may have against such Defaulting Purchaser with respect to any Funding Default.