Defaulting Revolving 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 Revolving Commitment (if any) of such Defaulting Lender pursuant to Section 2.10(a); (b) if there are any Swingline Loans outstanding or Letters of Credit outstanding at the time such Revolving Lender becomes a Defaulting Lender then: (i) all or any part of such outstanding Swingline Loans or outstanding Letters of Credit shall be reallocated among the Revolving Lenders that are not Defaulting Lenders in accordance with their respective Revolving Percentages but only to the extent the sum of all outstanding Revolving Extensions of Credit of the Revolving Lenders that are not Defaulting Lenders does not exceed the total of all Revolving Commitments of the Revolving Lenders that are not Defaulting Lenders (for the avoidance of doubt, no Lender shall be required to make Revolving Extensions of Credit in excess of its Revolving Commitment); (ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the outstanding Swingline Loans (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, (1) if a drawing is made under any Letter of Credit, such Borrower shall reimburse the applicable Issuing Lender in accordance with Section 3.5 and (2) if a Letter of Credit is requested by such Borrower in accordance with Section 3.2 during any period where there is a Defaulting Lender that is a Revolving Lender, such Borrower shall enter into an arrangement reasonably satisfactory to the applicable Issuing Lender to cover in whole or in part (which such arrangement may include cash collateralization) the exposure of the applicable Issuing Lender related to the participating interests of such Defaulting Lender in such newly issued Letter of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Lender is a Defaulting Lender or until such Lender is replaced pursuant to Section 2.24; (iii) if and so long as a Borrower cash collateralizes any portion of such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit pursuant to clause (ii) above, then such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.3 with respect thereto; (iv) upon any reallocation described in clause (i) above, the fees payable to the Revolving Lenders pursuant to Sections 2.10(a) and 3.3 shall be adjusted accordingly to re-allocate such fees among the Revolving Lenders which are not Defaulting Lenders; and (v) if any such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit is neither cash collateralized nor reallocated pursuant to clause (i) above, then, without prejudice to any rights or remedies of the applicable Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 3.3 with respect to such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit shall be payable to the relevant Issuing Lender until such cash collateralization and/or reallocation occurs; (c) no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that the related exposure will be covered in whole or in part by the Revolving Commitments of the Revolving Lenders that are not Defaulting Lenders and/or cash collateral or other arrangements will be provided by each applicable Borrower in accordance with clause (b)(ii) above, and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be (i) allocated among the Revolving Lenders that are not Defaulting Lenders and/or (ii) covered by arrangements made by each applicable Borrower pursuant to clause (b)(ii) above in a manner consistent with clauses (b)(i) and (ii) (and any such Defaulting Lenders shall not participate therein); (d) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Majority Facility Lenders under the Revolving Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (d) shall not apply in the case of an amendment, waiver or other modification requiring the consent of all Lenders or each Lender affected thereby; and (e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 10.7 but excluding Section 2.24) shall, in lieu of being distributed to such Defaulting Lender and without duplication, be retained by the Administrative Agent in a segregated interest-bearing account reasonably satisfactory to the Administrative Agent and the applicable Borrower(s) 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 any Issuing Lender or any Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or a Swingline Lender, held in such account as cash collateral for existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future funding obligations of such Defaulting Lender in respect of any existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future participation in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Revolving Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the applicable Borrower(s), unless such Defaulting Lender has no remaining unutilized Revolving Commitment, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Revolving Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to any Issuing Lender or any Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by such Issuing Lender or such 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 applicable Borrower(s) as a result of any judgment of a court of competent jurisdiction obtained by such Borrower(s) 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, with respect to this clause (viii), if such payment is (A) a prepayment of the principal amount of any Revolving Loans or Reimbursement Obligations as to which a Defaulting Lender has funded its participation and (B) made at a time when the conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to prepay the Revolving Loans of, and Reimbursement Obligations owed to, all Revolving Lenders that are not Defaulting Lenders under the Revolving Facility pro rata prior to being applied to the prepayment of any Revolving Loans of, or Reimbursement Obligations owed to, any Defaulting Lender. On the Revolving Termination Date, any remaining amounts not previously applied (except for amounts in connection with clause (vii) above) shall be returned to the applicable Defaulting Lender. In the event that the Administrative Agent, the applicable Borrower(s), each Issuing Lender and each Swingline Lender each reasonably determines that any such Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the outstanding Swingline Loans and outstanding Letters of Credit 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 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 Revolving Percentage and (ii) any arrangements made by the applicable Borrower(s) pursuant to clause (b)(ii) above shall be terminated and any cash collateral or arrangement provided by such Borrower(s) in accordance thereto will be terminated or promptly returned to such Borrower(s), as applicable. The provisions of this Agreement relating to funding, payment and other matters with respect to the Revolving Facility may be adjusted by the Administrative Agent, with the consent of the Borrowers (such consent not to be unreasonably withheld), to the extent necessary to give effect to the provisions of this Section 2.28. The provisions of this Section 2.28 may not be amended, supplemented or modified without, in addition to consents required by Section 10.1, the prior written consent of the Administrative Agent, the Swingline Lenders, the Issuing Lenders, the Borrowers and any Defaulting Lenders.
Appears in 2 contracts
Samples: Credit Agreement (Tenneco Inc), Credit Agreement (Tenneco Inc)
Defaulting Revolving Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Credit Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Credit Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the Available Revolving Credit Commitment (if any) of such Defaulting Lender pursuant to Section 2.10(a2.13(a)(ii);
(b) if there are any Swingline Loans outstanding or Letters Letter of Credit outstanding Outstandings exist at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of such outstanding Swingline Loans or outstanding Letters Letter of Credit Outstandings shall be reallocated among the non-Defaulting Revolving Lenders that are not Defaulting Credit Lenders in accordance with their respective Revolving Percentages but only to the extent (x) the sum of all outstanding non-Defaulting Revolving Extensions of Credit of the Lenders’ Outstanding Revolving Lenders that are not Defaulting Lenders Credit Obligations does not exceed the total of all non-Defaulting Revolving Credit Lenders’ Revolving Credit Commitments of and (y) the Revolving Lenders that conditions set forth in Section 5.2 are not Defaulting Lenders (for the avoidance of doubt, no Lender shall be required to make Revolving Extensions of Credit in excess of its Revolving Commitment);satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the outstanding Swingline Loans (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) secondAgent, (1) if a drawing is made under any Letter of Credit, such the Borrower shall reimburse the applicable Issuing Lender Bank in accordance with Section 3.5 2.4(c)(iv) and (2) if a Letter of Credit is requested by such the Borrower in accordance with Section 3.2 3.1(a) during any period where there is a Defaulting Lender that is a Revolving Lender, such the Borrower shall enter into an arrangement reasonably satisfactory to the applicable Issuing Lender Bank to cover in whole or in part (which such arrangement may include cash collateralization) the exposure of the applicable Issuing Lender Bank related to the participating interests of such Defaulting Lender in such newly issued Letter of Credit Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Lender is a Defaulting Lender or until such Lender is replaced pursuant to Section 2.244.7;
(iii) if and so long as a the Borrower cash collateralizes any portion of such Defaulting Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings pursuant to clause (ii) aboveSection 4.8(b)(ii), then then, in the case of any such Defaulting Lender that is a Revolving Credit Lender, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.3 3.4 with respect thereto;
(iv) upon any reallocation described in clause (i) above, the fees payable to the Revolving Credit Lenders pursuant to Sections 2.10(a2.13(a)(ii) and 3.3 3.4 shall be adjusted accordingly to re-allocate such fees among the Revolving Lenders which are not Defaulting Lendersaccordingly; and
(v) if any such Defaulting Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings is neither cash collateralized nor reallocated pursuant to clause (i) aboveSection 4.8(b)(i), then, if such Defaulting Lender is a Revolving Credit Lender, without prejudice to any rights or remedies of the applicable Issuing Lender Banks or any Lender hereunder, all letter of credit fees payable under Section 3.3 3.4 with respect to such Defaulting Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings shall be payable to the relevant Issuing Lender Bank until such cash collateralization and/or reallocation occurs;
(c) no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Lender Bank shall be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that the related exposure will be covered in whole or in part by the Revolving Credit Commitments of the non-Defaulting Revolving Lenders that are not Defaulting Credit Lenders and/or cash collateral or other arrangements will be provided by each applicable the Borrower in accordance with clause (b)(ii) aboveSection 4.8(b)(ii), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be (i) allocated among the non-Defaulting Revolving Lenders that are not Defaulting Credit Lenders and/or (ii) covered by arrangements made by each applicable the Borrower pursuant to clause (b)(iiSection 4.8(b)(ii) above in a manner consistent with clauses (b)(iSection 4.8(b)(i) and (ii) (and any such Defaulting Lenders shall not participate therein);; and
(d) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Majority Facility Lenders under the Revolving Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (d) shall not apply in the case of an amendmentany Defaulting Lender that is a Revolving Credit Lender, waiver or other modification requiring the consent of all Lenders or each Lender affected thereby; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 10.7 11.3 but excluding Section 2.244.7) shall, in lieu of being distributed to such Defaulting Lender and without duplication, be retained by the Administrative Agent in a segregated interest-bearing account reasonably satisfactory to the Administrative Agent and the applicable Borrower(s) Borrower 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 any the Issuing Lender or any Swingline Lender Banks hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or a Swingline LenderBank, held in such account as cash collateral for existing or (unless such Defaulting Lender has no remaining unutilized Revolving Credit Commitment) future funding obligations of such the Defaulting Lender in respect of any existing or (unless such Defaulting Lender has no remaining unutilized Revolving Credit Commitment) future participation Participation in any Swingline Loan or Letter of Credit, (iv) fourth, as the Borrower may request (so long as no Event of Default has occurred and is continuing), to the funding of any Revolving Credit 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 applicable Borrower(s)Borrower, unless such Defaulting Lender has no remaining unutilized Revolving Credit Commitment, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to any Issuing Lender or any Swingline Lender Bank as a result of any judgment of a court of competent jurisdiction obtained by such Issuing Lender or such Swingline Lender 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 applicable Borrower(s) Borrower or any Guarantor as a result of any judgment of a court of competent jurisdiction obtained by such Borrower(s) the Borrower or any Guarantor 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, with respect to this clause (viii), if such payment is (Ax) a prepayment of the principal amount of any Revolving Credit Loans or Reimbursement Obligations as to which a Defaulting Lender has funded its participation Participation and (By) made at a time when the conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and Reimbursement Obligations owed to, all non-Defaulting Revolving Credit Lenders that are not Defaulting Lenders under the Revolving Facility pro rata prior to being applied to the prepayment of any Revolving Credit Loans of, or Reimbursement Obligations owed to, any Defaulting Lender. On .
(e) Upon not less than three Business Days’ prior notice to such Defaulting Lender and the Revolving Termination Date, any remaining amounts not previously applied Administrative Agent (except for amounts in connection with clause (vii) above) shall be returned which the Administrative Agent will promptly provide to the applicable Lenders and the Issuing Banks), the Borrower shall have the right to terminate the then unutilized Revolving Credit Commitment of such Defaulting Lender, after taking into account the portion of such Revolving Credit Commitment, if any, which theretofore has been, or substantially contemporaneous therewith is being, assigned pursuant to Section 4.7. In the event that the Administrative Agent, the applicable Borrower(s), each Issuing Lender and each Swingline Lender each reasonably determines that of any such termination, future extensions of credit under the Revolving Credit Facility shall be allocated to the non-Defaulting Lender has adequately remedied all matters Revolving Credit Lenders in a manner that caused disregards the existence of any remaining Revolving Credit Commitment of such Lender to be a Defaulting Lender, then (i) the outstanding Swingline Loans and outstanding Letters of Credit 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 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 Revolving Percentage and (ii) any arrangements made by the applicable Borrower(s) pursuant to clause (b)(ii) above shall be terminated and any cash collateral or arrangement provided by such Borrower(s) in accordance thereto will be terminated or promptly returned to such Borrower(s), as applicable. The provisions of this Agreement relating to funding, payment and other matters with respect to the Revolving Facility may be adjusted by the Administrative Agent, with the consent of the Borrowers (such consent not to be unreasonably withheld), to the extent necessary to give effect to the provisions of this Section 2.28. The provisions of this Section 2.28 may not be amended, supplemented or modified without, in addition to consents required by Section 10.1, the prior written consent of the Administrative Agent, the Swingline Lenders, the Issuing Lenders, the Borrowers and any Defaulting Lenders.
Appears in 2 contracts
Samples: Credit Agreement (Autonation, Inc.), Credit Agreement (Autonation, Inc.)
Defaulting Revolving 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 Revolving Commitment (if any) of such Defaulting Lender pursuant to Section 2.10(a);2.10(a);
(b) if there are any Swingline Loans outstanding or Letters of Credit outstanding at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of such outstanding Swingline Loans or outstanding Letters of Credit shall be reallocated among the Revolving Lenders that are not Defaulting Lenders in accordance with their respective Revolving Percentages but only to the extent the sum of all outstanding Revolving Extensions of Credit of the Revolving Lenders that are not Defaulting Lenders does not exceed the total of all Revolving Commitments of the Revolving Lenders that are not Defaulting Lenders (for the avoidance of doubt, no Lender shall be required to make Revolving Extensions of Credit in excess of its Revolving Commitment);Commitment);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the outstanding Swingline Loans (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, (1) if a drawing is made under any Letter of Credit, such Borrower shall reimburse the applicable Issuing Lender in accordance with Section 3.5 and (2) if a Letter of Credit is requested by such Borrower in accordance with Section 3.2 during any period where there is a Defaulting Lender that is a Revolving Lender, such Borrower shall enter into an arrangement reasonably satisfactory to the applicable Issuing Lender to cover in whole or in part (which such arrangement may include cash collateralization) the exposure of the applicable Issuing Lender related to the participating interests of such Defaulting Lender in such newly issued Letter of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Lender is a Defaulting Lender or until such Lender is replaced pursuant to Section 2.24;2.24;
(iii) if and so long as a Borrower cash collateralizes any portion of such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit pursuant to clause (ii) above, then such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.3 with respect thereto;thereto;
(iv) upon any reallocation described in clause (i) above, the fees payable to the Revolving Lenders pursuant to Sections 2.10(a) and 3.3 shall be adjusted accordingly to re-allocate such fees among the Revolving Lenders which are not Defaulting Lenders; Lenders; and
(v) if any such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit is neither cash collateralized nor reallocated pursuant to clause (i) above, then, without prejudice to any rights or remedies of the applicable Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 3.3 with respect to such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit shall be payable to the relevant Issuing Lender until such cash collateralization and/or reallocation occurs;occurs;
(c) no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that the related exposure will be covered in whole or in part by the Revolving Commitments of the Revolving Lenders that are not Defaulting Lenders and/or cash collateral or other arrangements will be provided by each applicable Borrower in accordance with clause (b)(ii) above, and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be (i) allocated among the Revolving Lenders that are not Defaulting Lenders and/or (ii) covered by arrangements made by each applicable Borrower pursuant to clause (b)(ii) above in a manner consistent with clauses (b)(i) and (ii) (and any such Defaulting Lenders shall not participate therein);therein);
(d) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Majority Facility Lenders under the Revolving Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); 10.1); provided, that this clause (d) shall not apply in the case of an amendment, waiver or other modification requiring the consent of all Lenders or each Lender affected thereby; thereby; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 10.7 but excluding Section 2.24) shall, in lieu of being distributed to such Defaulting Lender and without duplication, be retained by the Administrative Agent in a segregated interest-bearing account reasonably satisfactory to the Administrative Agent and the applicable Borrower(s) 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 any Issuing Lender or any the Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or a the Swingline Lender, held in such account as cash collateral for existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future funding obligations of such Defaulting Lender in respect of any existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future participation in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Revolving Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the applicable Borrower(s), unless such Defaulting Lender has no remaining unutilized Revolving Commitment, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Revolving Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to any Issuing Lender or any the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by such Issuing Lender or such the 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 applicable Borrower(s) as a result of any judgment of a court of competent jurisdiction obtained by such Borrower(s) 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, with respect to this clause (viii), if such payment is (A) a prepayment of the principal amount of any Revolving Loans or Reimbursement Obligations as to which a Defaulting Lender has funded its participation and (B) made at a time when the conditions set forth in Section 5.2 5.3 are satisfied, such payment shall be applied solely to prepay the Revolving Loans of, and Reimbursement Obligations owed to, all Revolving Lenders that are not Defaulting Lenders under the Revolving Facility pro rata prior to being applied to the prepayment of any Revolving Loans of, or Reimbursement Obligations owed to, any Defaulting Lender. On the Revolving Termination Date, any remaining amounts not previously applied (except for amounts in connection with clause (vii) above) shall be returned to the applicable Defaulting Lender. In the event that the Administrative Agent, the applicable Borrower(s), each Issuing Lender and each the Swingline Lender each reasonably determines that any such Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the outstanding Swingline Loans and outstanding Letters of Credit 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 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 Revolving Percentage and (ii) any arrangements made by the applicable Borrower(s) pursuant to clause (b)(ii) above shall be terminated and any cash collateral or arrangement provided by such Borrower(s) in accordance thereto will be terminated or promptly returned to such Borrower(s), as applicable. The provisions of this Agreement relating to funding, payment and other matters with respect to the Revolving Facility may be adjusted by the Administrative Agent, with the consent of the Borrowers (such consent not to be unreasonably withheld), to the extent necessary to give effect to the provisions of this Section 2.28. The provisions Subject to Section 10.20, no reallocation hereunder shall constitute a waiver or release of this Section 2.28 may not be amendedany claim of any party hereunder against a Defaulting Lender arising from such Lender becoming a Defaulting Lender, supplemented or modified without, in addition to consents required by Section 10.1, the prior written consent including any claim of the Administrative Agent, the Swingline Lenders, the Issuing Lenders, the Borrowers and any a non-Defaulting Lenders.Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation
Appears in 2 contracts
Samples: Credit Agreement (Garden SpinCo Corp), Credit Agreement (Neogen Corp)
Defaulting Revolving Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Credit Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Credit Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the Extended Available Revolving Credit Commitment (if any) of such Defaulting Lender pursuant to Section 2.10(a2.13(a)(ii);
(b) if there are any Swingline Loans outstanding Swing Line Outstandings or Letters Letter of Credit outstanding Outstandings exist at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of such outstanding Swingline Loans or outstanding Letters Swing Line Outstandings and Letter of Credit Outstandings shall be reallocated among the non-Defaulting Revolving Lenders that are not Defaulting Credit Lenders in accordance with their respective Revolving Percentages but only to the extent (x) the sum of all outstanding non-Defaulting Revolving Extensions of Credit of the Lenders’ Outstanding Revolving Lenders that are not Defaulting Lenders Credit Obligations does not exceed the total of all non-Defaulting Revolving Credit Lenders’ Revolving Credit Commitments of and (y) the Revolving Lenders that conditions set forth in Section 5.2 are not Defaulting Lenders (for the avoidance of doubt, no Lender shall be required to make Revolving Extensions of Credit in excess of its Revolving Commitment);satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the outstanding Swingline Loans Swing Line Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, (1) if a drawing is made under any Letter of Credit, such the Borrower shall reimburse the applicable Issuing Lender Bank in accordance with Section 3.5 2.4(c)(iv) and (2) if a Letter of Credit is requested by such the Borrower in accordance with Section 3.2 3.1(a) during any period where there is a Defaulting Lender that is a Revolving Lender, such the Borrower shall enter into an arrangement reasonably satisfactory to the applicable Issuing Lender Bank to cover in whole or in part (which such arrangement may include cash collateralization) the exposure of the applicable Issuing Lender Bank related to the participating interests of such Defaulting Lender in such newly issued Letter of Credit Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Lender is a Defaulting Lender or until such Lender is replaced pursuant to Section 2.244.7;
(iii) if and so long as a the Borrower cash collateralizes any portion of such Defaulting Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings pursuant to clause (ii) aboveSection 4.8(b)(ii), then then, in the case of any such Defaulting Lender that is an Extended Revolving Credit Lender, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.3 3.4 with respect thereto;
(iv) upon any reallocation described in clause (i) above, the fees payable to the Revolving Credit Lenders pursuant to Sections 2.10(aSection 2.13(a)(ii) and 3.3 3.4 shall be adjusted accordingly to re-allocate such fees among the Revolving Lenders which are not Defaulting Lendersaccordingly; and
(v) if any such Defaulting Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings is neither cash collateralized nor reallocated pursuant to clause (i) aboveSection 4.8(b)(i), then, if such Defaulting Lender is an Extended Revolving Credit Lender, without prejudice to any rights or remedies of the applicable Issuing Lender Banks or any Lender hereunder, all letter of credit fees payable under Section 3.3 3.4 with respect to such Defaulting Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings shall be payable to the relevant Issuing Lender Bank until such cash collateralization and/or reallocation occurs;
(c) no Swingline the Swing Line Lender shall not be required to fund any Swingline Swing Line Loan and no Issuing Lender Bank shall be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that the related exposure will be covered in whole or in part by the Revolving Credit Commitments of the non-Defaulting Revolving Lenders that are not Defaulting Credit Lenders and/or cash collateral or other arrangements will be provided by each applicable the Borrower in accordance with clause (b)(ii) aboveSection 4.8(b)(ii), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Swing Line Loan shall be (i) allocated among the non-Defaulting Revolving Lenders that are not Defaulting Credit Lenders and/or (ii) covered by arrangements made by each applicable the Borrower pursuant to clause (b)(iiSection 4.8(b)(ii) above in a manner consistent with clauses (b)(iSection 4.8(b)(i) and (ii) (and any such Defaulting Lenders shall not participate therein);
(d) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Majority Facility Lenders under the Revolving Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (d) shall not apply in the case of an amendment, waiver or other modification requiring the consent of all Lenders or each Lender affected thereby; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 10.7 but excluding Section 2.24) shall, in lieu of being distributed to such Defaulting Lender and without duplication, be retained by the Administrative Agent in a segregated interest-bearing account reasonably satisfactory to the Administrative Agent and the applicable Borrower(s) 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 any Issuing Lender or any Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or a Swingline Lender, held in such account as cash collateral for existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future funding obligations of such Defaulting Lender in respect of any existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future participation in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Revolving Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the applicable Borrower(s), unless such Defaulting Lender has no remaining unutilized Revolving Commitment, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Revolving Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to any Issuing Lender or any Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by such Issuing Lender or such 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 applicable Borrower(s) as a result of any judgment of a court of competent jurisdiction obtained by such Borrower(s) 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, with respect to this clause (viii), if such payment is (A) a prepayment of the principal amount of any Revolving Loans or Reimbursement Obligations as to which a Defaulting Lender has funded its participation and (B) made at a time when the conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to prepay the Revolving Loans of, and Reimbursement Obligations owed to, all Revolving Lenders that are not Defaulting Lenders under the Revolving Facility pro rata prior to being applied to the prepayment of any Revolving Loans of, or Reimbursement Obligations owed to, any Defaulting Lender. On the Revolving Termination Date, any remaining amounts not previously applied (except for amounts in connection with clause (vii) above) shall be returned to the applicable Defaulting Lender. In the event that the Administrative Agent, the applicable Borrower(s), each Issuing Lender and each Swingline Lender each reasonably determines that any such Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the outstanding Swingline Loans and outstanding Letters of Credit 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 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 Revolving Percentage and (ii) any arrangements made by the applicable Borrower(s) pursuant to clause (b)(ii) above shall be terminated and any cash collateral or arrangement provided by such Borrower(s) in accordance thereto will be terminated or promptly returned to such Borrower(s), as applicable. The provisions of this Agreement relating to funding, payment and other matters with respect to the Revolving Facility may be adjusted by the Administrative Agent, with the consent of the Borrowers (such consent not to be unreasonably withheld), to the extent necessary to give effect to the provisions of this Section 2.28. The provisions of this Section 2.28 may not be amended, supplemented or modified without, in addition to consents required by Section 10.1, the prior written consent of the Administrative Agent, the Swingline Lenders, the Issuing Lenders, the Borrowers and any Defaulting Lenders.
Appears in 2 contracts
Samples: Five Year Credit Agreement (Autonation, Inc.), Five Year Credit Agreement (Autonation, Inc.)
Defaulting Revolving 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 unfunded portion of the Revolving Commitment (if any) of such Defaulting Lender pursuant to Section 2.10(a2.8(a);
(b) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;
(c) if there are any Swingline Loans outstanding Exposure or Letters of Credit outstanding LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of such outstanding Swingline Loans or outstanding Letters of Credit Exposure and LC Exposure shall be reallocated among the non-Defaulting Revolving Lenders that are not Defaulting Lenders in accordance with their respective Revolving Percentages but only to the extent (x) the sum of all outstanding non-Defaulting Revolving Lenders’ Revolving Extensions of Credit of the Revolving Lenders that are not Defaulting Lenders does not exceed the total of all non-Defaulting Revolving Lenders’ Revolving Commitments of and (y) the Revolving Lenders that conditions set forth in Section 5.2 are not Defaulting Lenders (for the avoidance of doubt, no Lender shall be required to make Revolving Extensions of Credit in excess of its Revolving Commitment);satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the outstanding Swingline Loans Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, (1) if a drawing is made under any Letter of Credit, such Borrower shall reimburse the applicable Issuing Lender in accordance with Section 3.5 and (2) if a Letter of Credit is requested by such Borrower in accordance with Section 3.2 during any period where there is a Defaulting Lender that is a Revolving Lender, such Borrower shall enter into an arrangement reasonably satisfactory to the applicable Issuing Lender to cover in whole or in part (which such arrangement may include cash collateralization) the exposure of the applicable Issuing Lender related to the participating interests collateralize 100% of such Defaulting Lender in such newly issued Letter of Credit Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in a manner reasonably satisfactory to the Administrative Agent for so long as such Lender LC Exposure is a Defaulting Lender outstanding, the prepayment or until cash collateralization of which may be financed with proceeds of Revolving Loans or Swingline Loans provided that the conditions precedent set forth in Section 5.2 are satisfied at such Lender is replaced pursuant to Section 2.24time;
(iii) if and so long as a the Borrower cash collateralizes any portion of such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit LC Exposure pursuant to clause (ii) aboveSection 2.24(c), then such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.3 3.3(a) with respect theretoto such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) upon any reallocation described in clause (i) aboveif the LC Exposure of the non-Defaulting Revolving Lenders is reallocated pursuant to Section 2.24(c), then the fees payable to the Revolving Lenders pursuant to Sections 2.10(aSection 2.8(a) and 3.3 3.3(a) shall be adjusted accordingly to rein accordance with such non-allocate such fees among the Defaulting Revolving Lenders which are not Defaulting Lenders’ Revolving Percentages; and
(v) if any such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to clause (i) aboveSection 2.24(c), then, without prejudice to any rights or remedies of the applicable Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 3.3 3.3(a) with respect to such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit LC Exposure shall be payable to the relevant Issuing Lender until such LC Exposure is cash collateralization collateralized and/or reallocation occursreallocated;
(cd) no the Swingline Lender shall not be required to fund any Swingline Loan and no the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that the related exposure will be 100% covered in whole or in part by the Revolving Commitments of the non-Defaulting Revolving Lenders that are not Defaulting Lenders and/or cash collateral or other arrangements will be provided by each applicable the Borrower in accordance with clause (b)(ii) aboveSection 2.24(c), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be (i) allocated among the non-Defaulting Revolving Lenders that are not Defaulting Lenders and/or (ii) covered by arrangements made by each applicable Borrower pursuant to clause (b)(ii) above in a manner consistent with clauses (b)(i) and (iiSection 2.24(c)(i) (and any such Defaulting Lenders shall not participate therein);
(d) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Majority Facility Lenders under the Revolving Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (d) shall not apply in the case of an amendment, waiver or other modification requiring the consent of all Lenders or each Lender affected thereby; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 10.7 but excluding Section 2.242.22) shall, in lieu of being distributed to such Defaulting Lender and without duplication, be retained by the Administrative Agent in a segregated interest-bearing account reasonably satisfactory to the Administrative Agent and the applicable Borrower(s) Borrower 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 any the Issuing Lender or any Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or a Swingline Lender, held in such account as cash collateral for existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future funding obligations of such the Defaulting Lender in respect of any existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future participation participating interest in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Revolving Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the applicable Borrower(s)Borrower, unless such Defaulting Lender has no remaining unutilized Revolving Commitment, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Revolving Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to any the Issuing Lender or any Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by such the Issuing Lender or such 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 applicable Borrower(s) Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower(s) 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, with respect to this clause (viii), if such payment is (Ax) a prepayment of the principal amount of any Revolving Loans or Reimbursement Obligations in respect of LC Disbursements as to which a Defaulting Lender has funded its participation obligations and (By) made at a time when the conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to prepay the Revolving Loans of, and Reimbursement Obligations owed to, all non-Defaulting Revolving Lenders that are not Defaulting Lenders under the Revolving Facility pro rata prior to being applied to the prepayment of any Revolving Loans of, or Reimbursement Obligations owed to, any Defaulting Lender.
(f) Upon not less than three Business Days’ prior notice to such Defaulting Lender and the Administrative Agent (which the Administrative Agent will promptly provide to the Lenders, the Issuing Lender and the Swingline Lender), the Borrower shall have the right to terminate the then unused Revolving Commitment of such Defaulting Lender, after taking into account the portion of such Revolving Commitment, if any, which theretofore has been, or substantially contemporaneous therewith is being, assigned pursuant to Section 2.22. On In the event of any such termination, future extensions of credit under the Revolving Termination Date, Facility shall be allocated to the non-Defaulting Revolving Lenders in a manner that disregards the existence of any remaining amounts not previously applied (except for amounts in connection with clause (vii) above) shall be returned to the applicable Revolving Commitment of such Defaulting Lender. In the event that the Administrative Agent, the applicable Borrower(s)Borrower, each the Issuing Lender and each the Swingline Lender each reasonably determines agrees that any such Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the outstanding Swingline Loans Exposure and outstanding Letters 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 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 Revolving Percentage and (ii) any arrangements made by the applicable Borrower(s) pursuant to clause (b)(ii) above shall be terminated and any cash collateral or arrangement provided by such Borrower(s) in accordance thereto will be terminated or promptly returned to such Borrower(s), as applicablePercentage. The provisions of this Agreement relating to funding, payment and other matters with respect to the Revolving Facility may be adjusted by the Administrative Agent, in consultation with the consent of the Borrowers (such consent not to be unreasonably withheld)Borrower, to the extent necessary to give effect to the provisions of this Section 2.282.24. The provisions of this Section 2.28 2.24 may not be amended, supplemented or modified without, in addition to consents required by Section 10.1, the prior written consent of the Administrative Agent, the Swingline LendersLender, the Issuing Lenders, Lender and the Borrowers and any Defaulting LendersBorrower.
Appears in 2 contracts
Samples: Credit Agreement (Rent a Center Inc De), Credit Agreement (Rent a Center Inc De)
Defaulting Revolving Lenders. Notwithstanding any provision of this Agreement Unless the Revolving Agent receives notice from a Revolving Lender on or prior 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 Revolving Commitment (if any) of such Defaulting Lender pursuant to Section 2.10(a);
(b) if there are any Swingline Loans outstanding or Letters of Credit outstanding at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of such outstanding Swingline Loans or outstanding Letters of Credit shall be reallocated among the Revolving Lenders that are not Defaulting Lenders in accordance with their respective Revolving Percentages but only to the extent the sum of all outstanding Revolving Extensions of Credit of the Revolving Lenders that are not Defaulting Lenders does not exceed the total of all Revolving Commitments of the Revolving Lenders that are not Defaulting Lenders (for the avoidance of doubt, no Lender shall be required to make Revolving Extensions of Credit in excess of its Revolving Commitment);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the outstanding Swingline Loans (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, (1) if a drawing is made under any Letter of Credit, such Borrower shall reimburse the applicable Issuing Lender in accordance with Section 3.5 and (2) if a Letter of Credit is requested by such Borrower in accordance with Section 3.2 during any period where there is a Defaulting Lender that is a Revolving Lender, such Borrower shall enter into an arrangement reasonably satisfactory to the applicable Issuing Lender to cover in whole or in part (which such arrangement may include cash collateralization) the exposure of the applicable Issuing Lender related to the participating interests of such Defaulting Lender in such newly issued Letter of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Lender is a Defaulting Lender or until such Lender is replaced pursuant to Section 2.24;
(iii) if and so long as a Borrower cash collateralizes any portion of such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit pursuant to clause (ii) above, then such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.3 with respect thereto;
(iv) upon any reallocation described in clause (i) above, the fees payable to the Revolving Lenders pursuant to Sections 2.10(a) and 3.3 shall be adjusted accordingly to re-allocate such fees among the Revolving Lenders which are not Defaulting Lenders; and
(v) if any such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit is neither cash collateralized nor reallocated pursuant to clause (i) above, then, without prejudice to any rights or remedies of the applicable Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 3.3 with respect to such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit shall be payable to the relevant Issuing Lender until such cash collateralization and/or reallocation occurs;
(c) no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that the related exposure will be covered in whole or in part by the Revolving Commitments of the Revolving Lenders that are not Defaulting Lenders and/or cash collateral or other arrangements will be provided by each applicable Borrower in accordance with clause (b)(ii) above, and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be (i) allocated among the Revolving Lenders that are not Defaulting Lenders and/or (ii) covered by arrangements made by each applicable Borrower pursuant to clause (b)(ii) above in a manner consistent with clauses (b)(i) and (ii) (and any such Defaulting Lenders shall not participate therein);
(d) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Majority Facility Lenders under the Revolving Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (d) shall not apply in the case of an amendment, waiver or other modification requiring the consent of all Lenders or each Lender affected thereby; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 10.7 but excluding Section 2.24) shall, in lieu of being distributed to such Defaulting Lender and without duplication, be retained by the Administrative Agent in a segregated interest-bearing account reasonably satisfactory to the Administrative Agent and the applicable Borrower(s) 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 any Issuing Lender or any Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or a Swingline Lender, held in such account as cash collateral for existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future funding obligations of such Defaulting Lender in respect of any existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future participation in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Revolving Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the applicable Borrower(s), unless such Defaulting Lender has no remaining unutilized Revolving Commitment, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Revolving Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to any Issuing Lender or any Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by such Issuing Lender or such 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 applicable Borrower(s) as a result of any judgment of a court of competent jurisdiction obtained by such Borrower(s) 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, thatClosing Date or, with respect to any borrowing after the Closing Date, at least one (1) Business Day prior to the date of such borrowing, that such Revolving Lender will not make available as and when required hereunder to the Revolving Agent such Revolving Lender's Revolving Commitment Percentage of such borrowing, the Revolving Agent may assume that each Revolving Lender has made such amount available to the Revolving Agent in immediately available funds on the Funding Date. Furthermore, the Revolving Agent may, in reliance upon such assumption, make available to the Borrowers on such date a corresponding amount. If any Revolving Lender has not transferred its full Revolving Commitment Percentage of any borrowing to the Revolving Agent in immediately available funds and if the Revolving Agent has transferred a corresponding amount to the Borrowers on the Business Day following such Funding Date the applicable Revolving Lender shall make such amount available to the Revolving Agent, together with interest at the Federal Funds Rate for that day. A notice by the Revolving Agent submitted to any Revolving Lender with respect to amounts owing shall be conclusive, absent manifest error. If each Revolving Lender's full Revolving Commitment Percentage of any requested borrowing is transferred to the Revolving Agent as required, the amount transferred to the Revolving Agent shall constitute such Revolving Lender's Revolving Loan for all purposes of this clause (viii)Agreement. If any such amount is not transferred to the Revolving Agent on the Business Day following the Funding Date, if the Revolving Agent will notify the Borrowers of such payment is (A) failure to fund and, upon demand by the Revolving Agent, the Borrowers shall pay such amount to the Revolving Agent for the Revolving Agent's account, together with interest thereon for each day elapsed since the date of such borrowing, at a prepayment of rate per annum equal to the principal amount Adjusted Base Rate. The failure of any Revolving Loans or Reimbursement Obligations Lender to make any Revolving Loan on any Funding Date (any such Revolving Lender, prior to the cure of such failure, being referred to herein as a "Defaulting Revolving Lender") shall not relieve any other Revolving Lender of its obligation hereunder to which make a Defaulting Revolving Loan on such Funding Date. No Revolving Lender has funded its participation and (B) made at a time when the conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely responsible for any other Revolving Lender's failure to prepay the advance such other Revolving Loans of, and Reimbursement Obligations owed to, all Lenders' Revolving Lenders that are not Defaulting Lenders under the Revolving Facility pro rata prior to being applied to the prepayment Commitment Percentage of any Revolving Loans of, or Reimbursement Obligations owed to, any Defaulting Lender. On the Revolving Termination Date, any remaining amounts not previously applied (except for amounts in connection with clause (vii) above) shall be returned to the applicable Defaulting Lender. In the event that the Administrative Agent, the applicable Borrower(s), each Issuing Lender and each Swingline Lender each reasonably determines that any such Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the outstanding Swingline Loans and outstanding Letters of Credit 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 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 Revolving Percentage and (ii) any arrangements made by the applicable Borrower(s) pursuant to clause (b)(ii) above shall be terminated and any cash collateral or arrangement provided by such Borrower(s) in accordance thereto will be terminated or promptly returned to such Borrower(s), as applicable. The provisions of this Agreement relating to funding, payment and other matters with respect to the Revolving Facility may be adjusted by the Administrative Agent, with the consent of the Borrowers (such consent not to be unreasonably withheld), to the extent necessary to give effect to the provisions of this Section 2.28. The provisions of this Section 2.28 may not be amended, supplemented or modified without, in addition to consents required by Section 10.1, the prior written consent of the Administrative Agent, the Swingline Lenders, the Issuing Lenders, the Borrowers and any Defaulting Lendersborrowing.
Appears in 1 contract
Samples: Credit Agreement (Friedmans Inc)
Defaulting Revolving 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 Revolving Commitment (if any) of such Defaulting Lender pursuant to Section 2.10(a);
(b) if there are any Swingline Loans outstanding or Letters of Credit outstanding at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of such outstanding Swingline Loans or outstanding Letters of Credit shall be reallocated among the Revolving Lenders that are not Defaulting Lenders in accordance with their respective Revolving Percentages but only to the extent the sum of all outstanding Revolving Extensions of Credit of the Revolving Lenders that are not Defaulting Lenders does not exceed the total of all Revolving Commitments of the Revolving Lenders that are not Defaulting Lenders (for the avoidance of doubt, no Lender shall be required to make Revolving Extensions of Credit in excess of its Revolving Commitment);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the outstanding Swingline Loans (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, (1) if a drawing is made under any Letter of Credit, such the Borrower shall reimburse the applicable Issuing Lender in accordance with Section 3.5 and (2) if a Letter of Credit is requested by such the Borrower in accordance with Section 3.2 during any period where there is a Defaulting Lender that is a Revolving Lender, such the Borrower shall enter into an arrangement reasonably satisfactory to the applicable Issuing Lender to cover in whole or in part (which such arrangement may include cash collateralization) the exposure of the applicable Issuing Lender related to the participating interests of such Defaulting Lender in such newly issued Letter of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Lender is a Defaulting Lender or until such Lender is replaced pursuant to Section 2.24;
(iii) if and so long as a the Borrower cash collateralizes any portion of such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit pursuant to clause (ii) above, then such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.3 with respect thereto;
(iv) upon any reallocation described in clause (i) above, the fees payable to the Revolving Lenders pursuant to Sections 2.10(a) and 3.3 shall be adjusted accordingly to re-allocate such fees among the Revolving Lenders which are not Defaulting Lenders; and
(v) if any such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit is neither cash collateralized nor reallocated pursuant to clause (i) above, then, without prejudice to any rights or remedies of the applicable Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 3.3 with respect to such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit shall be payable to the relevant Issuing Lender until such cash collateralization and/or reallocation occurs;
(c) no the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that the related exposure will be covered in whole or in part by the Revolving Commitments of the Revolving Lenders that are not Defaulting Lenders and/or cash collateral or other arrangements will be provided by each applicable the Borrower in accordance with clause (b)(ii) above, and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be (i) allocated among the Revolving Lenders that are not Defaulting Lenders and/or (ii) covered by arrangements made by each applicable the Borrower pursuant to clause (b)(ii) above in a manner consistent with clauses (b)(i) and (ii) (and any such Defaulting Lenders shall not participate therein);
(d) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or the Majority Facility Lenders under the Revolving Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (d) shall not apply in the case of an amendment, waiver or other modification requiring the consent of all Lenders or each Lender affected thereby; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 10.7 but excluding Section 2.24) shall, in lieu of being distributed to such Defaulting Lender and without duplication, be retained by the Administrative Agent in a segregated interest-bearing account reasonably satisfactory to the Administrative Agent and the applicable Borrower(s) Borrower 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 any Issuing Lender or any Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or a Swingline Lender, held in such account as cash collateral for existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future funding obligations of such Defaulting Lender in respect of any existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future participation in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Revolving Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the applicable Borrower(s), unless such Defaulting Lender has no remaining unutilized Revolving Commitment, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Revolving Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to any Issuing Lender or any Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by such Issuing Lender or such 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 applicable Borrower(s) as a result of any judgment of a court of competent jurisdiction obtained by such Borrower(s) 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, with respect to this clause (viii), if such payment is (A) a prepayment of the principal amount of any Revolving Loans or Reimbursement Obligations as to which a Defaulting Lender has funded its participation and (B) made at a time when the conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to prepay the Revolving Loans of, and Reimbursement Obligations owed to, all Revolving Lenders that are not Defaulting Lenders under the Revolving Facility pro rata prior to being applied to the prepayment of any Revolving Loans of, or Reimbursement Obligations owed to, any Defaulting Lender. On the Revolving Termination Date, any remaining amounts not previously applied (except for amounts in connection with clause (vii) above) shall be returned to the applicable Defaulting Lender. In the event that the Administrative Agent, the applicable Borrower(s), each Issuing Lender and each Swingline Lender each reasonably determines that any such Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the outstanding Swingline Loans and outstanding Letters of Credit 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 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 Revolving Percentage and (ii) any arrangements made by the applicable Borrower(s) pursuant to clause (b)(ii) above shall be terminated and any cash collateral or arrangement provided by such Borrower(s) in accordance thereto will be terminated or promptly returned to such Borrower(s), as applicable. The provisions of this Agreement relating to funding, payment and other matters with respect to the Revolving Facility may be adjusted by the Administrative Agent, with the consent of the Borrowers (such consent not to be unreasonably withheld), to the extent necessary to give effect to the provisions of this Section 2.28. The provisions of this Section 2.28 may not be amended, supplemented or modified without, in addition to consents required by Section 10.1, the prior written consent of the Administrative Agent, the Swingline Lenders, the Issuing Lenders, the Borrowers and any Defaulting Lenders.,
Appears in 1 contract
Samples: Credit Agreement (Tenneco Inc)
Defaulting Revolving Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Credit Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Credit Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the Available Revolving Credit Commitment (if any) of such Defaulting Lender pursuant to Section 2.10(a2.13(a)(ii);
(b) if there are any Swingline Loans outstanding Swing Line Outstandings or Letters Letter of Credit outstanding Outstandings exist at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of such outstanding Swingline Loans or outstanding Letters Swing Line Outstandings and Letter of Credit Outstandings shall be reallocated among the non-Defaulting Revolving Lenders that are not Defaulting Credit Lenders in accordance with their respective Revolving Percentages but only to the extent (x) the sum of all outstanding non-Defaulting Revolving Extensions of Credit of the Lenders’ Outstanding Revolving Lenders that are not Defaulting Lenders Credit Obligations does not exceed the total of all non-Defaulting Revolving Credit Lenders’ Revolving Credit Commitments of and (y) the Revolving Lenders that conditions set forth in Section 5.2 are not Defaulting Lenders (for the avoidance of doubt, no Lender shall be required to make Revolving Extensions of Credit in excess of its Revolving Commitment);satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the outstanding Swingline Loans Swing Line Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, (1) if a drawing is made under any Letter of Credit, such the Borrower shall reimburse the applicable Issuing Lender Bank in accordance with Section 3.5 2.4(c)(iv) and (2) if a Letter of Credit is requested by such the Borrower in accordance with Section 3.2 3.1(a) during any period where there is a Defaulting Lender that is a Revolving Lender, such the Borrower shall enter into an arrangement reasonably satisfactory to the applicable Issuing Lender Bank to cover in whole or in part (which such arrangement may include cash collateralization) the exposure of the applicable Issuing Lender Bank related to the participating interests of such Defaulting Lender in such newly issued Letter of Credit Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Lender is a Defaulting Lender or until such Lender is replaced pursuant to Section 2.244.7;
(iii) if and so long as a the Borrower cash collateralizes any portion of such Defaulting Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings pursuant to clause (ii) aboveSection 4.8(b)(ii), then then, in the case of any such Defaulting Lender that is a Revolving Credit Lender, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.3 3.4 with respect thereto;
(iv) upon any reallocation described in clause (i) above, the fees payable to the Revolving Credit Lenders pursuant to Sections 2.10(a2.13(a)(ii) and 3.3 3.4 shall be adjusted accordingly to re-allocate such fees among the Revolving Lenders which are not Defaulting Lendersaccordingly; and
(v) if any such Defaulting Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings is neither cash collateralized nor reallocated pursuant to clause (i) aboveSection 4.8(b)(i), then, if such Defaulting Lender is a Revolving Credit Lender, without prejudice to any rights or remedies of the applicable Issuing Lender Banks or any Lender hereunder, all letter of credit fees payable under Section 3.3 3.4 with respect to such Defaulting Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings shall be payable to the relevant Issuing Lender Bank until such cash collateralization and/or reallocation occurs;
(c) no Swingline the Swing Line Lender shall not be required to fund any Swingline Swing Line Loan and no Issuing Lender Bank shall be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that the related exposure will be covered in whole or in part by the Revolving Credit Commitments of the non-Defaulting Revolving Lenders that are not Defaulting Credit Lenders and/or cash collateral or other arrangements will be provided by each applicable the Borrower in accordance with clause (b)(ii) aboveSection 4.8(b)(ii), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Swing Line Loan shall be (i) allocated among the non-Defaulting Revolving Lenders that are not Defaulting Credit Lenders and/or (ii) covered by arrangements made by each applicable the Borrower pursuant to clause (b)(iiSection 4.8(b)(ii) above in a manner consistent with clauses (b)(iSection 4.8(b)(i) and (ii) (and any such Defaulting Lenders shall not participate therein);; and
(d) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Majority Facility Lenders under the Revolving Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (d) shall not apply in the case of an amendmentany Defaulting Lender that is a Revolving Credit Lender, waiver or other modification requiring the consent of all Lenders or each Lender affected thereby; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 10.7 11.3 but excluding Section 2.244.7) shall, in lieu of being distributed to such Defaulting Lender and without duplication, be retained by the Administrative Agent in a segregated interest-bearing account reasonably satisfactory to the Administrative Agent and the applicable Borrower(s) Borrower 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 any the Issuing Lender Banks or any Swingline Swing Line Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender Bank or a Swingline Swing Line Lender, held in such account as cash collateral for existing or (unless such Defaulting Lender has no remaining unutilized Revolving Credit Commitment) future funding obligations of such the Defaulting Lender in respect of any existing or (unless such Defaulting Lender has no remaining unutilized Revolving Credit Commitment) future participation Participation in any Swingline Swing Line Loan or Letter of Credit, (iv) fourth, to the funding of any Revolving Credit 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 applicable Borrower(s)Borrower, unless such Defaulting Lender has no remaining unutilized Revolving Credit Commitment, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to any Issuing Lender Bank or any Swingline Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by such Issuing Lender Bank or such Swingline Swing Line 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 applicable Borrower(s) Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower(s) 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, with respect to this clause (viii), if such payment is (Ax) a prepayment of the principal amount of any Revolving Credit Loans or Reimbursement Obligations as to which a Defaulting Lender has funded its participation Participation and (By) made at a time when the conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and Reimbursement Obligations owed to, all non-Defaulting Revolving Credit Lenders that are not Defaulting Lenders under the Revolving Facility pro rata prior to being applied to the prepayment of any Revolving Credit Loans of, or Reimbursement Obligations owed to, any Defaulting Lender.
(e) Upon not less than three Business Days’ prior notice to such Defaulting Lender and the Administrative Agent (which the Administrative Agent will promptly provide to the Lenders, the Issuing Banks and the Swing Line Lender), the Borrower shall have the right to terminate the then unutilized Revolving Credit Commitment of such Defaulting Lender, after taking into account the portion of such Revolving Credit Commitment, if any, which theretofore has been, or substantially contemporaneous therewith is being, assigned pursuant to Section 4.7. On In the event of any such termination, future extensions of credit under the Revolving Termination Date, Credit Facility shall be allocated to the non-Defaulting Revolving Credit Lenders in a manner that disregards the existence of any remaining amounts not previously applied (except for amounts in connection with clause (vii) above) shall be returned to the applicable Revolving Credit Commitment of such Defaulting Lender. In the event that the Administrative Agent, the applicable Borrower(s)Borrower, each Issuing Lender Bank and each Swingline the Swing Line Lender each reasonably determines agrees that any such Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the outstanding Swingline Loans Swing Line Outstandings and outstanding Letters Letter of Credit Outstandings of the Revolving Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such date such Lender shall purchase at par such of the Revolving Credit Loans of the other Lenders (other than Swingline Swing Line Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Revolving Percentage and (ii) any arrangements made by the applicable Borrower(s) Borrower pursuant to clause (b)(iiSection 4.8(b)(ii) above shall be terminated and any cash collateral or arrangement provided by such Borrower(s) the Borrower in accordance thereto will be terminated or promptly returned to such Borrower(s)the Borrower, as applicable. The provisions of this Agreement relating to funding, payment and other matters with respect to the Revolving Facility may be adjusted by the Administrative Agent, with the consent of the Borrowers Borrower (such consent not to be unreasonably withheld), to the extent necessary to give effect to the provisions of this Section 2.284.8. The provisions of this Section 2.28 4.8 may not be amended, supplemented or modified without, in addition to consents required by Section 10.111.6, the prior written consent of the Administrative Agent, the Swingline LendersSwing Line Lender, the Issuing Lenders, Banks and the Borrowers and any Defaulting LendersBorrower.
Appears in 1 contract
Samples: Credit Agreement (Autonation, Inc.)
Defaulting Revolving 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 Revolving Commitment (if any) of such Defaulting Lender pursuant to Section 2.10(a);
(b) if there are any Swingline Loans outstanding or Letters of Credit outstanding at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of such outstanding Swingline Loans or outstanding Letters of Credit shall be reallocated among the Revolving Lenders that are not Defaulting Lenders in accordance with their respective Revolving Percentages but only to the extent the sum of all outstanding Revolving Extensions of Credit of the Revolving Lenders that are not Defaulting Lenders does not exceed the total of all Revolving Commitments of the Revolving Lenders that are not Defaulting Lenders (for the avoidance of doubt, no Lender shall be required to make Revolving Extensions of Credit in excess of its Revolving Commitment);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the outstanding Swingline Loans (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, (1) if a drawing is made under any Letter of Credit, such the Borrower shall reimburse the applicable Issuing Lender in accordance with Section 3.5 and (2) if a Letter of Credit is requested by such the Borrower in accordance with Section 3.2 during any period where there is a Defaulting Lender that is a Revolving Lender, such the Borrower shall enter into an arrangement reasonably satisfactory to the applicable Issuing Lender to cover in whole or in part (which such arrangement may include cash collateralization) the exposure of the applicable Issuing Lender related to the participating interests of such Defaulting Lender in such newly issued Letter of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Lender is a Defaulting Lender or until such Lender is replaced pursuant to Section 2.24;
(iii) if and so long as a the Borrower cash collateralizes any portion of such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit pursuant to clause (ii) above, then such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.3 with respect thereto;
(iv) upon any reallocation described in clause (i) above, the fees payable to the Revolving Lenders pursuant to Sections 2.10(a) and 3.3 shall be adjusted accordingly to re-allocate such fees among the Revolving Lenders which are not Defaulting Lenders; and
(v) if any such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit is neither cash collateralized nor reallocated pursuant to clause (i) above, then, without prejudice to any rights or remedies of the applicable Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 3.3 with respect to such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit shall be payable to the relevant Issuing Lender until such cash collateralization and/or reallocation occurs;
(c) no the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that the related exposure will be covered in whole or in part by the Revolving Commitments of the Revolving Lenders that are not Defaulting Lenders and/or cash collateral or other arrangements will be provided by each applicable the Borrower in accordance with clause (b)(ii) above, and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be (i) allocated among the Revolving Lenders that are not Defaulting Lenders and/or (ii) covered by arrangements made by each applicable the Borrower pursuant to clause (b)(ii) above in a manner consistent with clauses (b)(i) and (ii) (and any such Defaulting Lenders shall not participate therein);
(d) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or the Majority Facility Lenders under the Revolving Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (d) shall not apply in the case of an amendment, waiver or other modification requiring the consent of all Lenders or each Lender affected thereby; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 10.7 but excluding Section 2.24) shall, in lieu of being distributed to such Defaulting Lender and without duplication, be retained by the Administrative Agent in a segregated interest-bearing account reasonably satisfactory to the Administrative Agent and the applicable Borrower(s) Borrower 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 any Issuing Lender or any Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or a Swingline Lender, held in such account as cash collateral for existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future funding obligations of such Defaulting Lender in respect of any existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future participation in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Revolving Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the applicable Borrower(s)Borrower, unless such Defaulting Lender has no remaining unutilized Revolving Commitment, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Revolving Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to any Issuing Lender or any Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by such Issuing Lender or such 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 applicable Borrower(s) Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower(s) 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, with respect to this clause (viii), if such payment is (A) a prepayment of the principal amount of any Revolving Loans or Reimbursement Obligations as to which a Defaulting Lender has funded its participation and (B) made at a time when the conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to prepay the Revolving Loans of, and Reimbursement Obligations owed to, all Revolving Lenders that are not Defaulting Lenders under the Revolving Facility pro rata prior to being applied to the prepayment of any Revolving Loans of, or Reimbursement Obligations owed to, any Defaulting Lender. On the Revolving Termination Date, any remaining amounts not previously applied (except for amounts in connection with clause (vii) above) shall be returned to the applicable Defaulting Lender. In the event that the Administrative Agent, the applicable Borrower(s)Borrower, each Issuing Lender and each the Swingline Lender each reasonably determines that any such Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the outstanding Swingline Loans and outstanding Letters of Credit 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 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 Revolving Percentage and (ii) any arrangements made by the applicable Borrower(s) Borrower pursuant to clause (b)(ii) above shall be terminated and any cash collateral or arrangement provided by such Borrower(s) the Borrower in accordance thereto will be terminated or promptly returned to such Borrower(s)the Borrower, as applicable. The provisions of this Agreement relating to funding, payment and other matters with respect to the Revolving Facility may be adjusted by the Administrative Agent, with the consent of the Borrowers Borrower (such consent not to be unreasonably withheld), to the extent necessary to give effect to the provisions of this Section 2.28. The provisions of this Section 2.28 may not be amended, supplemented or modified without, in addition to consents required by Section 10.1, the prior written consent of the Administrative Agent, the Swingline LendersLender, the Issuing Lenders, the Borrowers Borrower and any Defaulting Lenders.
Appears in 1 contract
Samples: Credit Agreement (Tenneco Inc)
Defaulting Revolving Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Credit Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Credit Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the Available Revolving Credit Commitment (if any) of such Defaulting Lender pursuant to Section 2.10(a2.13(a)(ii);
(b) if there are any Swingline Loans outstanding or Letters Letter of Credit outstanding Outstandings exist at the time such Revolving Lender becomes Lendxx xxxomes a Defaulting Lender then:
(i) all or any part of such outstanding Swingline Loans or outstanding Letters Letter of Credit Outstandings shall be reallocated among the non-Defaulting Revolving Lenders that are not Defaulting Credit Lenders in accordance with their respective Revolving Percentages but only to the extent (w) the sum of all outstanding non-Defaulting Revolving Extensions of Credit of the Lenders’ Outstanding Revolving Lenders that are not Defaulting Lenders Credit Obligations does not exceed the total of all non-Defaulting Revolving Commitments of Credit Lenders’ Revolving Credit Commitments, (x) such reallocation does not cause the aggregate Revolving Lenders that are not Defaulting Lenders (for the avoidance of doubt, no Lender shall be required to make Revolving Extensions Credit Loans and Letter of Credit Outstandings of any non-Defaulting Revolving Credit Lender to exceed such non-Defaulting Revolving Credit Lendxx’x Xevolving Credit Commitment and (y) the conditions set forth in excess of its Revolving Commitment);Section 5.2 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the outstanding Swingline Loans (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) secondAgent, (1) if a drawing is made under any Letter of Credit, such the Borrower shall reimburse the applicable Issuing Lender Bank in accordance with Section 3.5 2.4(c)(iv) and (2) if a Letter of Credit is requested by such the Borrower in accordance with Section 3.2 3.1(a) during any period where there is a Defaulting Lender that is a Revolving Lender, such the Borrower shall enter into an arrangement reasonably satisfactory to the applicable Issuing Lender Bank to cover in whole or in part (which such arrangement may include cash collateralization) the exposure of the applicable Issuing Lender Bank related to the participating interests of such Defaulting Lender in such newly issued Letter of Credit Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Lender is a Defaulting Lender or until such Lender is replaced pursuant to Section 2.244.7;
(iii) if and so long as a the Borrower cash collateralizes any portion of such Defaulting Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings pursuant to clause (ii) aboveSection 4.8(b)(ii), then then, in the case of any such Defaulting Lender that is a Revolving Credit Lender, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.3 3.4 with respect thereto;
(iv) upon any reallocation described in clause (i) above, the fees payable to the Revolving Credit Lenders pursuant to Sections 2.10(a2.13(a)(ii) and 3.3 3.4 shall be adjusted accordingly to re-allocate such fees among the Revolving Lenders which are not Defaulting Lendersaccordingly; and
(v) if any such Defaulting Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings is neither cash collateralized nor reallocated pursuant to clause (i) aboveSection 4.8(b)(i), then, if such Defaulting Lender is a Revolving Credit Lender, without prejudice to any rights or remedies of the applicable Issuing Lender Banks or any Lender hereunder, all letter of credit fees payable under Section 3.3 3.4 with respect to such Defaulting Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings shall be payable to the relevant Issuing Lender Bank until such cash collateralization and/or reallocation occurs;
(c) no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Lender Bank shall be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that the related exposure will be covered in whole or in part by the Revolving Credit Commitments of the non-Defaulting Revolving Lenders that are not Defaulting Credit Lenders and/or cash collateral or other arrangements will be provided by each applicable the Borrower in accordance with clause (b)(ii) aboveSection 4.8(b)(ii), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be (i) allocated among the non-Defaulting Revolving Lenders that are not Defaulting Credit Lenders and/or (ii) covered by arrangements made by each applicable the Borrower pursuant to clause (b)(iiSection 4.8(b)(ii) above in a manner consistent with clauses (b)(iSection 4.8(b)(i) and (ii) (and any such Defaulting Lenders shall not participate therein);; and
(d) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Majority Facility Lenders under the Revolving Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (d) shall not apply in the case of an amendmentany Defaulting Lender that is a Revolving Credit Lender, waiver or other modification requiring the consent of all Lenders or each Lender affected thereby; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 10.7 11.3 but excluding Section 2.244.7) shall, in lieu of being distributed to such Defaulting Lender and without duplication, be retained by the Administrative Agent in a segregated interest-bearing account reasonably satisfactory to the Administrative Agent and the applicable Borrower(s) Borrower 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 any the Issuing Lender or any Swingline Lender Banks hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or a Swingline LenderBank, held in such account as cash collateral for existing or (unless such Defaulting Lender has no remaining unutilized Revolving Credit Commitment) future funding obligations of such the Defaulting Lender in respect of any existing or (unless such Defaulting Lender has no remaining unutilized Revolving Credit Commitment) future participation Participation in any Swingline Loan or Letter of Credit, (iv) fourth, as the Borrower may request (so long as no Event of Default has occurred and is continuing), to the funding of any Revolving Credit 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 applicable Borrower(s)Borrower, unless such Defaulting Lender has no remaining unutilized Revolving Credit Commitment, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to any Issuing Lender or any Swingline Lender Bank as a result of any judgment of a court of competent jurisdiction obtained by such Issuing Lender or such Swingline Lender 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 applicable Borrower(s) Borrower or any Guarantor as a result of any judgment of a court of competent jurisdiction obtained by such Borrower(s) the Borrower or any Guarantor 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, with respect to this clause (viii), if such payment is (Ax) a prepayment of the principal amount of any Revolving Credit Loans or Reimbursement Obligations as to which a Defaulting Lender has funded its participation Participation and (By) made at a time when the conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and Reimbursement Obligations owed to, all non-Defaulting Revolving Credit Lenders that are not Defaulting Lenders under the Revolving Facility pro rata prior to being applied to the prepayment of any Revolving Credit Loans of, or Reimbursement Obligations owed to, any Defaulting Lender. On .
(e) Upon not less than three Business Days’ prior notice to such Defaulting Lender and the Revolving Termination Date, any remaining amounts not previously applied Administrative Agent (except for amounts in connection with clause (vii) above) shall be returned which the Administrative Agent will promptly provide to the applicable Lenders and the Issuing Banks), the Borrower shall have the right to terminate the then unutilized Revolving Credit Commitment of such Defaulting Lender, after taking into account the portion of such Revolving Credit Commitment, if any, which theretofore has been, or substantially contemporaneous therewith is being, assigned pursuant to Section 4.7. In the event that the Administrative Agent, the applicable Borrower(s), each Issuing Lender and each Swingline Lender each reasonably determines that of any such termination, future extensions of credit under the Revolving Credit Facility shall be allocated to the non-Defaulting Lender has adequately remedied all matters Revolving Credit Lenders in a manner that caused disregards the existence of any remaining Revolving Credit Commitment of such Lender to be a Defaulting Lender, then (i) the outstanding Swingline Loans and outstanding Letters of Credit 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 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 Revolving Percentage and (ii) any arrangements made by the applicable Borrower(s) pursuant to clause (b)(ii) above shall be terminated and any cash collateral or arrangement provided by such Borrower(s) in accordance thereto will be terminated or promptly returned to such Borrower(s), as applicable. The provisions of this Agreement relating to funding, payment and other matters with respect to the Revolving Facility may be adjusted by the Administrative Agent, with the consent of the Borrowers (such consent not to be unreasonably withheld), to the extent necessary to give effect to the provisions of this Section 2.28. The provisions of this Section 2.28 may not be amended, supplemented or modified without, in addition to consents required by Section 10.1, the prior written consent of the Administrative Agent, the Swingline Lenders, the Issuing Lenders, the Borrowers and any Defaulting Lenders.
Appears in 1 contract
Samples: Credit Agreement (Autonation, Inc.)
Defaulting Revolving 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 Extended Available Revolving Commitment (if any) of such Defaulting Lender pursuant to Section 2.10(a);
(b) if there are any Swingline Loans outstanding or Revolving Letters of Credit outstanding at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of such outstanding Swingline Loans or outstanding Revolving Letters of Credit shall be reallocated among the Extended Revolving Lenders that are not Defaulting Lenders in accordance with their respective Revolving Percentages but only to the extent (x) the sum of all outstanding Revolving Extensions of Credit of the Extended Revolving Lenders that are not Defaulting Lenders under the Revolving Facility does not exceed the total of all Revolving Commitments of the Extended Revolving Lenders that are not Defaulting Lenders (for the avoidance of doubt, no Lender shall be required to make Revolving Extensions of Credit in excess of its Revolving Commitment);) and (y) the conditions set forth in Section 5.2 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable the Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the outstanding Swingline Loans (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, (1) if a drawing is made under any Revolving Letter of Credit, such the Borrower shall reimburse the applicable Issuing Lender in accordance with Section 3.5 and (2) if a Revolving Letter of Credit is requested by such the Borrower in accordance with Section 3.2 during any period where there is a Defaulting Lender that is a an Extended Revolving Lender, such the Borrower shall enter into an arrangement reasonably satisfactory to the applicable Issuing Lender to cover in whole or in part (which such arrangement may include cash collateralization) the exposure of the applicable Issuing Lender related to the participating interests of such Defaulting Lender in such newly issued Revolving Letter of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Lender is a Defaulting Lender or until such Lender is replaced pursuant to Section 2.24;
(iii) if and so long as a the Borrower cash collateralizes any portion of such Defaulting Lender’s Revolving Percentage of outstanding Revolving Letters of Credit pursuant to clause (ii) above, then such the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.3 with respect thereto;
(iv) upon any reallocation described in clause (i) above, the fees payable to the Extended Revolving Lenders pursuant to Sections Section 2.10(a) and 3.3 shall be adjusted accordingly to re-allocate such fees among the Revolving Lenders which are not Defaulting Lendersaccordingly; and
(v) if any such Defaulting Lender’s Revolving Percentage of outstanding Revolving Letters of Credit is neither cash collateralized nor reallocated pursuant to clause (i) above, then, without prejudice to any rights or remedies of the applicable Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 3.3 with respect to such Defaulting Lender’s Revolving Percentage of outstanding Revolving Letters of Credit shall be payable to the relevant Issuing Lender until such cash collateralization and/or reallocation occurs;
(c) no the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Lender shall be required to issue, amend or increase any Revolving Letter of Credit, unless it is reasonably satisfied that the related exposure will be covered in whole or in part by the Revolving Commitments of the Extended Revolving Lenders that are not Defaulting Lenders and/or cash collateral or other arrangements will be provided by each applicable the Borrower in accordance with clause (b)(ii) above, and participating interests in any such newly issued or increased Revolving Letter of Credit or newly made Swingline Loan shall be (i) allocated among the Extended Revolving Lenders that are not Defaulting Lenders and/or (ii) covered by arrangements made by each applicable the Borrower pursuant to clause (b)(ii) above in a manner consistent with clauses (b)(i) and (ii) (and any such Defaulting Lenders shall not participate therein);
(d) if the Defaulting Lender is an Extended Revolving Lender, the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders or the Majority Facility Lenders under the Revolving Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (d) shall not apply in the case of an amendment, waiver or other modification requiring the consent of all Lenders or each Lender affected thereby; and
(e) in the case of any Defaulting Lender that is an Extended Revolving Lender, any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 10.7 but excluding Section 2.24) shall, in lieu of being distributed to such Defaulting Lender and without duplication, be retained by the Administrative Agent in a segregated interest-bearing account reasonably satisfactory to the Administrative Agent and the applicable Borrower(s) Borrower 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 any Issuing Lender or any Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or a Swingline Lender, held in such account as cash collateral for existing or (unless such Defaulting Lender has no remaining unutilized Extended Revolving Commitment) future funding obligations of such Defaulting Lender in respect of any existing or (unless such Defaulting Lender has no remaining unutilized Extended Revolving Commitment) future participation in any Swingline Loan or Revolving Letter of Credit, (iv) fourth, to the funding of any Revolving Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the applicable Borrower(s)Borrower, unless such Defaulting Lender has no remaining unutilized Extended Revolving Commitment, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Extended Revolving Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to any Issuing Lender or any Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by such Issuing Lender or such 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 applicable Borrower(s) Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower(s) 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, with respect to this clause (viii), if such payment is (A) a prepayment of the principal amount of any Revolving Loans or Reimbursement Obligations as to which a Defaulting Lender has funded its participation and (B) made at a time when the conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to prepay the Revolving Loans of, and Reimbursement Obligations owed to, all Revolving Lenders that are not Defaulting Lenders under the Extended Revolving Facility pro rata prior to being applied to the prepayment of any Revolving Loans of, or Reimbursement Obligations owed to, any Defaulting Lender. On the Extended Revolving Termination Date, any remaining amounts not previously applied (except for amounts in connection with clause (vii) above) shall be returned to the applicable Defaulting Lender. In the event that the Administrative Agent, the applicable Borrower(s)Borrower, each Issuing Lender and each the Swingline Lender each reasonably determines that any such Defaulting Lender which is an Extended Revolving Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the outstanding Swingline Loans and outstanding Revolving Letters of Credit of the Extended 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 Extended 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 Revolving Percentage and (ii) any arrangements made by the applicable Borrower(s) Borrower pursuant to clause (b)(ii) above shall be terminated and any cash collateral or arrangement provided by such Borrower(s) the Borrower in accordance thereto will be terminated or promptly returned to such Borrower(s)the Borrower, as applicable. The provisions of this Agreement relating to funding, payment and other matters with respect to the Extended Revolving Facility may be adjusted by the Administrative Agent, with the consent of the Borrowers Borrower (such consent not to be unreasonably withheld), to the extent necessary to give effect to the provisions of this Section 2.28. The provisions of this Section 2.28 may not be amended, supplemented or modified without, in addition to consents required by Section 10.1, the prior written consent of the Administrative Agent, the Swingline LendersLender, the Issuing Lenders, the Borrowers Borrower, and any Defaulting Lenders.
Appears in 1 contract
Samples: Credit Agreement (Tenneco Inc)
Defaulting Revolving 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 A Revolving Lender who fails to accrue pay the Agent its Proportionate Share of any Revolving Loans (including Agent Revolving Advances) made available by the Agent on the Available Revolving Commitment (if any) of such Defaulting Lender pursuant to Section 2.10(a);
(b) if there are any Swingline Loans outstanding or Letters of Credit outstanding at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of such outstanding Swingline Loans or outstanding Letters of Credit shall be reallocated among the Revolving Lenders that are not Defaulting Lenders in accordance with their respective Revolving Percentages but only to the extent the sum of all outstanding Revolving Extensions of Credit of the Revolving Lenders that are not Defaulting Lenders does not exceed the total of all Revolving Commitments of the Revolving Lenders that are not Defaulting Lenders (for the avoidance of doubt, no Lender shall be required to make Revolving Extensions of Credit in excess of its Revolving Commitment);
(ii) if the reallocation described in clause (i) above cannotLender's behalf, or can only partially, be effected, each applicable Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the outstanding Swingline Loans (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, (1) if a drawing is made under any Letter of Credit, such Borrower shall reimburse the applicable Issuing Lender in accordance with Section 3.5 and (2) if a Letter of Credit is requested by such Borrower in accordance with Section 3.2 during any period where there is a Defaulting Lender that is a Revolving Lender, such Borrower shall enter into an arrangement reasonably satisfactory to the applicable Issuing Lender to cover in whole or in part (which such arrangement may include cash collateralization) the exposure of the applicable Issuing Lender related to the participating interests of such Defaulting Lender in such newly issued Letter of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Lender is a Defaulting Lender or until such Lender is replaced pursuant to Section 2.24;
(iii) if and so long as a Borrower cash collateralizes any portion of such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit pursuant to clause (ii) above, then such Borrower shall not be required who fails to pay any fees other amounts owing by it to the Agent, is a "DEFAULTING REVOLVING LENDER." The Agent is entitled to recover from such Defaulting Revolving Lender pursuant to Section 3.3 with respect thereto;
(iv) upon any reallocation described in clause (i) above, the fees payable to the Revolving Lenders pursuant to Sections 2.10(a) and 3.3 shall be adjusted accordingly to re-allocate all such fees among the Revolving Lenders which are not Defaulting Lenders; and
(v) if any such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit is neither cash collateralized nor reallocated pursuant to clause (i) above, then, without prejudice to any rights or remedies of the applicable Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 3.3 with respect to such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit shall be payable to the relevant Issuing Lender until such cash collateralization and/or reallocation occurs;
(c) no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that the related exposure will be covered in whole or in part by the Revolving Commitments of the Revolving Lenders that are not Defaulting Lenders and/or cash collateral or other arrangements will be provided by each applicable Borrower in accordance with clause (b)(ii) above, and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be (i) allocated among the Revolving Lenders that are not Defaulting Lenders and/or (ii) covered by arrangements made by each applicable Borrower pursuant to clause (b)(ii) above in a manner consistent with clauses (b)(i) and (ii) (and any such Defaulting Lenders shall not participate therein);
(d) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Majority Facility Lenders under the Revolving Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (d) shall not apply in the case of an amendment, waiver or other modification requiring the consent of all Lenders or each Lender affected thereby; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 10.7 but excluding Section 2.24) shall, in lieu of being distributed to such Defaulting Lender and without duplication, be retained by the Administrative Agent in a segregated interest-bearing account reasonably satisfactory to the Administrative Agent and the applicable Borrower(s) 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 Revolving Lender on demand. If the Defaulting Revolving Lender does not pay such amounts on the Agent's demand, the Agent shall promptly notify the LFC Funds Administrator and the Borrowers shall pay such amounts to the Administrative Agent hereunder, (ii) second, pro rata, to the payment extent the Agent has made such amounts available to or for the account of any amounts owing by Borrowers) within five (5) Business Days of its receipt of such notice. In addition, the Defaulting Lender to any Issuing Revolving Lender or any Swingline Lender hereunder, the Borrowers shall pay to the Agent for its own account interest on such amount for each day from the date it was made available by the Agent to the Borrowers to the date it is recovered by the Agent at a rate per annum equal to (iiiX) thirdthe overnight Federal Funds Rate, if so determined paid by the Administrative Agent or requested by an Issuing Lender or a Swingline Defaulting Revolving Lender, held in such account as cash collateral for existing or (unless such Defaulting Lender has no remaining unutilized Revolving CommitmentY) future funding obligations the then applicable rate of such Defaulting Lender in respect of any existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future participation in any Swingline Loan or Letter of Creditinterest calculated under SECTION 4.1, (iv) fourth, to the funding of any Revolving Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined if paid by the Administrative AgentBorrower; PLUS, (v) fifthin each case, the Expenses and losses, if so determined by the Administrative Agent and the applicable Borrower(s)any, unless such Defaulting Lender has no remaining unutilized Revolving Commitment, held in such account incurred as cash collateral for future funding obligations a result of the Defaulting Lender in respect of Revolving Lender's failure to perform its obligations. Nothing herein shall be deemed to relieve any Revolving Loans under this Agreement, (vi) sixth, Lender of its obligation to fulfill its commitments hereunder or to prejudice any rights which the payment of Borrowers may have against any amounts owing to any Issuing Lender or any Swingline Revolving Lender as a result of any judgment of a court of competent jurisdiction obtained default by such Issuing Revolving Lender or such Swingline hereunder, including, without limitation, the right of the Borrowers to seek reimbursement from any Defaulting Revolving Lender against such Defaulting Lender as a result for any amounts paid by the Borrowers under CLAUSE (Y) above on account of such Defaulting Revolving Lender’s breach of its obligations under this Agreement, (vii) seventh, to the payment of any amounts owing to the applicable Borrower(s) as a result of any judgment of a court of competent jurisdiction obtained by such Borrower(s) 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, with respect to this clause (viii), if such payment is (A) a prepayment of the principal amount of any Revolving Loans or Reimbursement Obligations as to which a Defaulting Lender has funded its participation and (B) made at a time when the conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to prepay the Revolving Loans of, and Reimbursement Obligations owed to, all Revolving Lenders that are not Defaulting Lenders under the Revolving Facility pro rata prior to being applied to the prepayment of any Revolving Loans of, or Reimbursement Obligations owed to, any Defaulting Lender. On the Revolving Termination Date, any remaining amounts not previously applied (except for amounts in connection with clause (vii) above) shall be returned to the applicable Defaulting Lender. In the event that the Administrative Agent, the applicable Borrower(s), each Issuing Lender and each Swingline Lender each reasonably determines that any such Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the outstanding Swingline Loans and outstanding Letters of Credit 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 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 Revolving Percentage and (ii) any arrangements made by the applicable Borrower(s) pursuant to clause (b)(ii) above shall be terminated and any cash collateral or arrangement provided by such Borrower(s) in accordance thereto will be terminated or promptly returned to such Borrower(s), as applicable. The provisions of this Agreement relating to funding, payment and other matters with respect to the Revolving Facility may be adjusted by the Administrative Agent, with the consent of the Borrowers (such consent not to be unreasonably withheld), to the extent necessary to give effect to the provisions of this Section 2.28. The provisions of this Section 2.28 may not be amended, supplemented or modified without, in addition to consents required by Section 10.1, the prior written consent of the Administrative Agent, the Swingline Lenders, the Issuing Lenders, the Borrowers and any Defaulting Lenders's default.
Appears in 1 contract
Defaulting Revolving 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 A Revolving Lender who fails to accrue pay the Agent its Proportionate Share of any Revolving Loans (including Agent Revolving Advances) made available by the Agent on the Available Revolving Commitment (if any) of such Defaulting Lender pursuant to Section 2.10(a);
(b) if there are any Swingline Loans outstanding or Letters of Credit outstanding at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of such outstanding Swingline Loans or outstanding Letters of Credit shall be reallocated among the Revolving Lenders that are not Defaulting Lenders in accordance with their respective Revolving Percentages but only to the extent the sum of all outstanding Revolving Extensions of Credit of the Revolving Lenders that are not Defaulting Lenders does not exceed the total of all Revolving Commitments of the Revolving Lenders that are not Defaulting Lenders (for the avoidance of doubt, no Lender shall be required to make Revolving Extensions of Credit in excess of its Revolving Commitment);
(ii) if the reallocation described in clause (i) above cannotLender's behalf, or can only partially, be effected, each applicable Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the outstanding Swingline Loans (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, (1) if a drawing is made under any Letter of Credit, such Borrower shall reimburse the applicable Issuing Lender in accordance with Section 3.5 and (2) if a Letter of Credit is requested by such Borrower in accordance with Section 3.2 during any period where there is a Defaulting Lender that is a Revolving Lender, such Borrower shall enter into an arrangement reasonably satisfactory to the applicable Issuing Lender to cover in whole or in part (which such arrangement may include cash collateralization) the exposure of the applicable Issuing Lender related to the participating interests of such Defaulting Lender in such newly issued Letter of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Lender is a Defaulting Lender or until such Lender is replaced pursuant to Section 2.24;
(iii) if and so long as a Borrower cash collateralizes any portion of such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit pursuant to clause (ii) above, then such Borrower shall not be required who fails to pay any fees other amounts owing by it to the Agent, is a "Defaulting Revolving Lender." The Agent is entitled to recover from such Defaulting Revolving Lender pursuant to Section 3.3 with respect thereto;
(iv) upon any reallocation described in clause (i) above, the fees payable to the Revolving Lenders pursuant to Sections 2.10(a) and 3.3 shall be adjusted accordingly to re-allocate all such fees among the Revolving Lenders which are not Defaulting Lenders; and
(v) if any such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit is neither cash collateralized nor reallocated pursuant to clause (i) above, then, without prejudice to any rights or remedies of the applicable Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 3.3 with respect to such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit shall be payable to the relevant Issuing Lender until such cash collateralization and/or reallocation occurs;
(c) no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that the related exposure will be covered in whole or in part by the Revolving Commitments of the Revolving Lenders that are not Defaulting Lenders and/or cash collateral or other arrangements will be provided by each applicable Borrower in accordance with clause (b)(ii) above, and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be (i) allocated among the Revolving Lenders that are not Defaulting Lenders and/or (ii) covered by arrangements made by each applicable Borrower pursuant to clause (b)(ii) above in a manner consistent with clauses (b)(i) and (ii) (and any such Defaulting Lenders shall not participate therein);
(d) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Majority Facility Lenders under the Revolving Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (d) shall not apply in the case of an amendment, waiver or other modification requiring the consent of all Lenders or each Lender affected thereby; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 10.7 but excluding Section 2.24) shall, in lieu of being distributed to such Defaulting Lender and without duplication, be retained by the Administrative Agent in a segregated interest-bearing account reasonably satisfactory to the Administrative Agent and the applicable Borrower(s) 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 Revolving Lender on demand. If the Defaulting Revolving Lender does not pay such amounts on the Agent's demand, the Agent shall promptly notify the Borrower Representative and the Borrowers shall pay such amounts within five (5) Business Days of the Borrower Representative's receipt of such notice. In addition, the Defaulting Revolving Lender or the Borrowers shall pay to the Administrative Agent hereunder, (ii) second, pro rata, for its own account interest on such amount for each day from the date it was made available by the Agent to the payment of any amounts owing Borrowers to the date it is recovered by such Defaulting Lender the Agent at a rate per annum equal to any Issuing Lender or any Swingline Lender hereunder, (iiix) thirdthe overnight Federal Funds Rate, if so determined paid by the Administrative Agent or requested by an Issuing Lender or a Swingline Defaulting Revolving Lender, held in such account as cash collateral for existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitmenty) future funding obligations the then applicable rate of such Defaulting Lender in respect of any existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future participation in any Swingline Loan or Letter of Creditinterest calculated under Section 4.1, (iv) fourth, to the funding of any Revolving Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined if paid by the Administrative AgentBorrowers; plus, (v) fifthin each case, the Expenses and losses, if so determined by the Administrative Agent and the applicable Borrower(s)any, unless such Defaulting Lender has no remaining unutilized Revolving Commitment, held in such account incurred as cash collateral for future funding obligations a result of the Defaulting Lender in respect of Revolving Lender's failure to perform its obligations. Nothing herein shall be deemed to relieve any Revolving Loans under this Agreement, (vi) sixth, Lender of its obligation to fulfill its commitments hereunder or to prejudice any rights which the payment of Borrowers may have against any amounts owing to any Issuing Lender or any Swingline Revolving Lender as a result of any judgment of a court of competent jurisdiction obtained default by such Issuing Revolving Lender or such Swingline hereunder, including, without limitation, the right of the Borrowers to seek reimbursement from any Defaulting Revolving Lender against such Defaulting Lender as a result for any amounts paid by the Borrowers under clause (y) above on account of such Defaulting Revolving Lender’s breach of its obligations under this Agreement, 's default.
(viib) seventh, to the payment of any amounts owing to the applicable Borrower(s) as a result of any judgment of a court of competent jurisdiction obtained by such Borrower(s) 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, with respect to this clause (viii), if such payment is (A) a prepayment of the principal amount The failure of any Revolving Loans or Reimbursement Obligations as Lender to which fund its Proportionate Share of a Defaulting Revolving Loan shall not relieve any other Revolving Lender has funded of its participation and (B) made at obligation to fund its Proportionate Share of a time when the conditions set forth in Section 5.2 are satisfiedRevolving Loan. Conversely, such payment no Revolving Lender shall be applied solely to prepay responsible for the failure of another Revolving Loans of, and Reimbursement Obligations owed to, all Revolving Lenders that are not Defaulting Lenders under the Revolving Facility pro rata prior to being applied to the prepayment of any Revolving Loans of, or Reimbursement Obligations owed to, any Defaulting Lender. On the Revolving Termination Date, any remaining amounts not previously applied (except for amounts in connection with clause (vii) above) shall be returned to the applicable Defaulting Lender. In the event that the Administrative Agent, the applicable Borrower(s), each Issuing Lender and each Swingline Lender each reasonably determines that any such Defaulting Lender has adequately remedied all matters that caused such Lender to be fund its Proportionate Share of a Defaulting Lender, then (i) the outstanding Swingline Loans and outstanding Letters of Credit 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 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 Revolving Percentage and (ii) any arrangements made by the applicable Borrower(s) pursuant to clause (b)(ii) above shall be terminated and any cash collateral or arrangement provided by such Borrower(s) in accordance thereto will be terminated or promptly returned to such Borrower(s), as applicable. The provisions of this Agreement relating to funding, payment and other matters with respect to the Revolving Facility may be adjusted by the Administrative Agent, with the consent of the Borrowers (such consent not to be unreasonably withheld), to the extent necessary to give effect to the provisions of this Section 2.28. The provisions of this Section 2.28 may not be amended, supplemented or modified without, in addition to consents required by Section 10.1, the prior written consent of the Administrative Agent, the Swingline Lenders, the Issuing Lenders, the Borrowers and any Defaulting LendersLoan.
Appears in 1 contract
Defaulting Revolving Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Credit Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Credit Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the Available Revolving Credit Commitment (if any) of such Defaulting Lender pursuant to Section 2.10(a2.13(a)(ii);
(b) if there are any Swingline Loans outstanding or Letters Letter of Credit outstanding Outstandings exist at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of such outstanding Swingline Loans or outstanding Letters Letter of Credit Outstandings shall be reallocated among the non-Defaulting Revolving Lenders that are not Defaulting Credit Lenders in accordance with their respective Revolving Percentages but only to the extent (w) the sum of all outstanding non-Defaulting Revolving Extensions of Credit of the Lenders’ Outstanding Revolving Lenders that are not Defaulting Lenders Credit Obligations does not exceed the total of all non-Defaulting Revolving Commitments of Credit Lenders’ Revolving Credit Commitments, (x) such reallocation does not cause the aggregate Revolving Lenders that are not Defaulting Lenders (for the avoidance of doubt, no Lender shall be required to make Revolving Extensions Credit Loans and Letter of Credit Outstandings of any non-Defaulting Revolving Credit Lender to exceed such non-Defaulting Revolving Credit Lender’s Revolving Credit Commitment and (y) the conditions set forth in excess of its Revolving Commitment);Section 5.2 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the outstanding Swingline Loans (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) secondAgent, (1) if a drawing is made under any Letter of Credit, such the Borrower shall reimburse the applicable Issuing Lender Bank in accordance with Section 3.5 2.4(c)(iv) and (2) if a Letter of Credit is requested by such the Borrower in accordance with Section 3.2 3.1(a) during any period where there is a Defaulting Lender that is a Revolving Lender, such the Borrower shall enter into an arrangement reasonably satisfactory to the applicable Issuing Lender Bank to cover in whole or in part (which such arrangement may include cash collateralization) the exposure of the applicable Issuing Lender Bank related to the participating interests of such Defaulting Lender in such newly issued Letter of Credit Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Lender is a Defaulting Lender or until such Lender is replaced pursuant to Section 2.244.7;
(iii) if and so long as a the Borrower cash collateralizes any portion of such Defaulting Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings pursuant to clause (ii) aboveSection 4.8(b)(ii), then then, in the case of any such Defaulting Lender that is a Revolving Credit Lender, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.3 3.4 with respect thereto;
(iv) upon any reallocation described in clause (i) above, the fees payable to the Revolving Credit Lenders pursuant to Sections 2.10(a2.13(a)(ii) and 3.3 3.4 shall be adjusted accordingly to re-allocate such fees among the Revolving Lenders which are not Defaulting Lendersaccordingly; and
(v) if any such Defaulting Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings is neither cash collateralized nor reallocated pursuant to clause (i) aboveSection 4.8(b)(i), then, if such Defaulting Lender is a Revolving Credit Lender, without prejudice to any rights or remedies of the applicable Issuing Lender Banks or any Lender hereunder, all letter of credit fees payable under Section 3.3 3.4 with respect to such Defaulting Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings shall be payable to the relevant Issuing Lender Bank until such cash collateralization and/or reallocation occurs;
(c) no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Lender Bank shall be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that the related exposure will be covered in whole or in part by the Revolving Credit Commitments of the non-Defaulting Revolving Lenders that are not Defaulting Credit Lenders and/or cash collateral or other arrangements will be provided by each applicable the Borrower in accordance with clause (b)(ii) aboveSection 4.8(b)(ii), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be (i) allocated among the non-Defaulting Revolving Lenders that are not Defaulting Credit Lenders and/or (ii) covered by arrangements made by each applicable the Borrower pursuant to clause (b)(iiSection 4.8(b)(ii) above in a manner consistent with clauses (b)(iSection 4.8(b)(i) and (ii) (and any such Defaulting Lenders shall not participate therein);; and
(d) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Majority Facility Lenders under the Revolving Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (d) shall not apply in the case of an amendmentany Defaulting Lender that is a Revolving Credit Lender, waiver or other modification requiring the consent of all Lenders or each Lender affected thereby; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 10.7 11.3 but excluding Section 2.244.7) shall, in lieu of being distributed to such Defaulting Lender and without duplication, be retained by the Administrative Agent in a segregated interest-bearing account reasonably satisfactory to the Administrative Agent and the applicable Borrower(s) Borrower 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 any the Issuing Lender or any Swingline Lender Banks hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or a Swingline LenderBank, held in such account as cash collateral for existing or (unless such Defaulting Lender has no remaining unutilized Revolving Credit Commitment) future funding obligations of such the Defaulting Lender in respect of any existing or (unless such Defaulting Lender has no remaining unutilized Revolving Credit Commitment) future participation Participation in any Swingline Loan or Letter of Credit, (iv) fourth, as the Borrower may request (so long as no Event of Default has occurred and is continuing), to the funding of any Revolving Credit 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 applicable Borrower(s)Borrower, unless such Defaulting Lender has no remaining unutilized Revolving Credit Commitment, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to any Issuing Lender or any Swingline Lender Bank as a result of any judgment of a court of competent jurisdiction obtained by such Issuing Lender or such Swingline Lender 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 applicable Borrower(s) Borrower or any Guarantor as a result of any judgment of a court of competent jurisdiction obtained by such Borrower(s) the Borrower or any Guarantor 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, with respect to this clause (viii), if such payment is (Ax) a prepayment of the principal amount of any Revolving Credit Loans or Reimbursement Obligations as to which a Defaulting Lender has funded its participation Participation and (By) made at a time when the conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and Reimbursement Obligations owed to, all non-Defaulting Revolving Credit Lenders that are not Defaulting Lenders under the Revolving Facility pro rata prior to being applied to the prepayment of any Revolving Credit Loans of, or Reimbursement Obligations owed to, any Defaulting Lender. On .
(e) Upon not less than three Business Days’ prior notice to such Defaulting Lender and the Revolving Termination Date, any remaining amounts not previously applied Administrative Agent (except for amounts in connection with clause (vii) above) shall be returned which the Administrative Agent will promptly provide to the applicable Lenders and the Issuing Banks), the Borrower shall have the right to terminate the then unutilized Revolving Credit Commitment of such Defaulting Lender, after taking into account the portion of such Revolving Credit Commitment, if any, which theretofore has been, or substantially contemporaneous therewith is being, assigned pursuant to Section 4.7. In the event that the Administrative Agent, the applicable Borrower(s), each Issuing Lender and each Swingline Lender each reasonably determines that of any such termination, future extensions of credit under the Revolving Credit Facility shall be allocated to the non-Defaulting Lender has adequately remedied all matters Revolving Credit Lenders in a manner that caused disregards the existence of any remaining Revolving Credit Commitment of such Lender to be a Defaulting Lender, then (i) the outstanding Swingline Loans and outstanding Letters of Credit 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 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 Revolving Percentage and (ii) any arrangements made by the applicable Borrower(s) pursuant to clause (b)(ii) above shall be terminated and any cash collateral or arrangement provided by such Borrower(s) in accordance thereto will be terminated or promptly returned to such Borrower(s), as applicable. The provisions of this Agreement relating to funding, payment and other matters with respect to the Revolving Facility may be adjusted by the Administrative Agent, with the consent of the Borrowers (such consent not to be unreasonably withheld), to the extent necessary to give effect to the provisions of this Section 2.28. The provisions of this Section 2.28 may not be amended, supplemented or modified without, in addition to consents required by Section 10.1, the prior written consent of the Administrative Agent, the Swingline Lenders, the Issuing Lenders, the Borrowers and any Defaulting Lenders.
Appears in 1 contract
Samples: Credit Agreement (Autonation, Inc.)
Defaulting Revolving Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Credit Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Credit Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the Available Revolving Credit Commitment (if any) of such Defaulting Lender pursuant to Section 2.10(a2.13(a);
(b) if there are any Swingline Loans outstanding or Letters Letter of Credit outstanding Outstandings exist at the time such Revolving Lender Xxxxxx becomes a Defaulting Lender then:
(i) all or any part of such outstanding Swingline Loans or outstanding Letters Letter of Credit Outstandings shall be reallocated among the non-Defaulting Revolving Lenders that are not Defaulting Credit Lenders in accordance with their respective Revolving Percentages but only to the extent (w) the sum of all outstanding non-Defaulting Revolving Extensions of Credit of the Lenders’ Outstanding Revolving Lenders that are not Defaulting Lenders Credit Obligations does not exceed the total of all non-Defaulting Revolving Commitments of Credit Lenders’ Revolving Credit Commitments, (x) such reallocation does not cause the aggregate Revolving Lenders that are not Defaulting Lenders (for the avoidance of doubt, no Lender shall be required to make Revolving Extensions Credit Loans and Letter of Credit Outstandings of any non-Defaulting Revolving Credit Lender to exceed such non-Defaulting Revolving Credit Xxxxxx’s Revolving Credit Commitment and (y) the conditions set forth in excess of its Revolving Commitment);Section 5.2 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the outstanding Swingline Loans (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) secondAgent, (1) if a drawing is made under any Letter of Credit, such the Borrower shall reimburse the applicable Issuing Lender Bank in accordance with Section 3.5 2.4(c)(iv) and (2) if a Letter of Credit is requested by such the Borrower in accordance with Section 3.2 3.1 during any period where there is a Defaulting Lender that is a Revolving Lender, such the Borrower shall enter into an arrangement reasonably satisfactory to the applicable Issuing Lender Bank to cover in whole or in part (which such arrangement may include cash collateralization) the exposure of the applicable Issuing Lender Bank related to the participating interests of such Defaulting Lender in such newly issued Letter of Credit Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Lender is a Defaulting Lender or until such Lender is replaced pursuant to Section 2.244.7;
(iii) if and so long as a the Borrower cash collateralizes any portion of such Defaulting Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings pursuant to clause (ii) aboveSection 4.8(b)(ii), then then, in the case of any such Defaulting Lender that is a Revolving Credit Lender, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.3 3.4 with respect thereto;
(iv) upon any reallocation described in clause (i) above, the fees payable to the Revolving Credit Lenders pursuant to Sections 2.10(a2.13(a) and 3.3 3.4 shall be adjusted accordingly to re-allocate such fees among the Revolving Lenders which are not Defaulting Lendersaccordingly; and
(v) if any such Defaulting Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings is neither cash collateralized nor reallocated pursuant to clause (i) aboveSection 4.8(b)(i), then, if such Defaulting Lender is a Revolving Credit Lender, without prejudice to any rights or remedies of the applicable Issuing Lender Banks or any Lender hereunder, all letter of credit fees payable under Section 3.3 3.4 with respect to such Defaulting Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings shall be payable to the relevant Issuing Lender Bank until such cash collateralization and/or reallocation occurs;
(c) no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Lender Bank shall be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that the related exposure will be covered in whole or in part by the Revolving Credit Commitments of the non-Defaulting Revolving Lenders that are not Defaulting Credit Lenders and/or cash collateral or other arrangements will be provided by each applicable the Borrower in accordance with clause (b)(ii) aboveSection 4.8(b)(ii), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be (i) allocated among the non-Defaulting Revolving Lenders that are not Defaulting Credit Lenders and/or (ii) covered by arrangements made by each applicable the Borrower pursuant to clause (b)(iiSection 4.8(b)(ii) above in a manner consistent with clauses (b)(iSection 4.8(b)(i) and (ii) (and any such Defaulting Lenders shall not participate therein);; and
(d) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Majority Facility Lenders under the Revolving Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (d) shall not apply in the case of an amendmentany Defaulting Lender that is a Revolving Credit Lender, waiver or other modification requiring the consent of all Lenders or each Lender affected thereby; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 10.7 11.3 but excluding Section 2.244.7) shall, in lieu of being distributed to such Defaulting Lender and without duplication, be retained by the Administrative Agent in a segregated interest-bearing account reasonably satisfactory to the Administrative Agent and the applicable Borrower(s) Borrower 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 any the Issuing Lender or any Swingline Lender Banks hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or a Swingline LenderBank, held in such account as cash collateral for existing or (unless such Defaulting Lender has no remaining unutilized Revolving Credit Commitment) future funding obligations of such the Defaulting Lender in respect of any existing or (unless such Defaulting Lender has no remaining unutilized Revolving Credit Commitment) future participation Participation in any Swingline Loan or Letter of Credit, (iv) fourth, as the Borrower may request (so long as no Event of Default has occurred and is continuing), to the funding of any Revolving Credit 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 applicable Borrower(s)Borrower, unless such Defaulting Lender has no remaining unutilized Revolving Credit Commitment, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Revolving Credit Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to any Issuing Lender or any Swingline Lender Bank as a result of any judgment of a court of competent jurisdiction obtained by such Issuing Lender or such Swingline Lender 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 applicable Borrower(s) Borrower or any Guarantor as a result of any judgment of a court of competent jurisdiction obtained by such Borrower(s) the Borrower or any Guarantor 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, with respect to this clause (viii), if such payment is (Ax) a prepayment of the principal amount of any Revolving Credit Loans or Reimbursement Obligations as to which a Defaulting Lender has funded its participation Participation and (By) made at a time when the conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to prepay the Revolving Credit Loans of, and Reimbursement Obligations owed to, all non-Defaulting Revolving Credit Lenders that are not Defaulting Lenders under the Revolving Facility pro rata prior to being applied to the prepayment of any Revolving Credit Loans of, or Reimbursement Obligations owed to, any Defaulting Lender. On .
(e) Upon not less than three Business Days’ prior notice to such Defaulting Lender and the Revolving Termination Date, any remaining amounts not previously applied Administrative Agent (except for amounts in connection with clause (vii) above) shall be returned which the Administrative Agent will promptly provide to the applicable Lenders and the Issuing Banks), the Borrower shall have the right to terminate the then unutilized Revolving Credit Commitment of such Defaulting Lender, after taking into account the portion of such Revolving Credit Commitment, if any, which theretofore has been, or substantially contemporaneous therewith is being, assigned pursuant to Section 4.7. In the event that the Administrative Agent, the applicable Borrower(s), each Issuing Lender and each Swingline Lender each reasonably determines that of any such termination, future extensions of credit under the Revolving Credit Facility shall be allocated to the non-Defaulting Lender has adequately remedied all matters Revolving Credit Lenders in a manner that caused disregards the existence of any remaining Revolving Credit Commitment of such Lender to be a Defaulting Lender, then (i) the outstanding Swingline Loans and outstanding Letters of Credit 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 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 Revolving Percentage and (ii) any arrangements made by the applicable Borrower(s) pursuant to clause (b)(ii) above shall be terminated and any cash collateral or arrangement provided by such Borrower(s) in accordance thereto will be terminated or promptly returned to such Borrower(s), as applicable. The provisions of this Agreement relating to funding, payment and other matters with respect to the Revolving Facility may be adjusted by the Administrative Agent, with the consent of the Borrowers (such consent not to be unreasonably withheld), to the extent necessary to give effect to the provisions of this Section 2.28. The provisions of this Section 2.28 may not be amended, supplemented or modified without, in addition to consents required by Section 10.1, the prior written consent of the Administrative Agent, the Swingline Lenders, the Issuing Lenders, the Borrowers and any Defaulting Lenders.
Appears in 1 contract
Samples: Credit Agreement (Autonation, Inc.)
Defaulting Revolving Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender (a “Defaulting Revolving Lender”), then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Revolving Lender:
(a) commitment fees shall cease to accrue on the Available Revolving Commitment (if any) of such Defaulting Revolving Lender pursuant to Section 2.10(a);2.6;
(b) if there are any Swingline Loans outstanding or Letters of Credit outstanding at the time such Revolving Lender becomes a Defaulting Lender then:
(i) all or any part of such outstanding Swingline Loans or outstanding Letters of Credit shall be reallocated among the Revolving Lenders that are not Defaulting Lenders in accordance with their respective Revolving Percentages but only to the extent the sum of all outstanding Revolving Extensions of Credit of the Revolving Lenders that are not Defaulting Lenders does not exceed the total of all Revolving Commitments of the Revolving Lenders that are not Defaulting Lenders (for the avoidance of doubt, no Lender shall be required to make Revolving Extensions of Credit in excess of its Revolving Commitment);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such Defaulting Lender’s Revolving Percentage of the outstanding Swingline Loans (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, (1) if a drawing is made under any Letter of Credit, such Borrower shall reimburse the applicable Issuing Lender in accordance with Section 3.5 and (2) if a Letter of Credit is requested by such Borrower in accordance with Section 3.2 during any period where there is a Defaulting Lender that is a Revolving Lender, such Borrower shall enter into an arrangement reasonably satisfactory to the applicable Issuing Lender to cover in whole or in part (which such arrangement may include cash collateralization) the exposure of the applicable Issuing Lender related to the participating interests of such Defaulting Lender in such newly issued Letter of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such Lender is a Defaulting Lender or until such Lender is replaced pursuant to Section 2.24;
(iii) if and so long as a Borrower cash collateralizes any portion of such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit pursuant to clause (ii) above, then such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.3 with respect thereto;
(iv) upon any reallocation described in clause (i) above, the fees payable to the Revolving Lenders pursuant to Sections 2.10(a) and 3.3 shall be adjusted accordingly to re-allocate such fees among the Revolving Lenders which are not Defaulting Lenders; and
(v) if any such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit is neither cash collateralized nor reallocated pursuant to clause (i) above, then, without prejudice to any rights or remedies of the applicable Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 3.3 with respect to such Defaulting Lender’s Revolving Percentage of outstanding Letters of Credit shall be payable to the relevant Issuing Lender until such cash collateralization and/or reallocation occurs;[reserved]
(c) no Swingline Lender shall be required to fund any Swingline Loan and no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that the related exposure will be covered in whole or in part by the Revolving Commitments of the Revolving Lenders that are not Defaulting Lenders and/or cash collateral or other arrangements will be provided by each applicable Borrower in accordance with clause (b)(ii) above, and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be (i) allocated among the Revolving Lenders that are not Defaulting Lenders and/or (ii) covered by arrangements made by each applicable Borrower pursuant to clause (b)(ii) above in a manner consistent with clauses (b)(i) and (ii) (and any such Defaulting Lenders shall not participate therein);[reserved];
(d) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Revolving Lender shall not be included in determining whether the Required Lenders or the Majority Facility Lenders under the Revolving Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); 10.1); provided, that this clause (d) shall not apply in the case of an amendment, waiver or other modification requiring the consent of all Lenders or each Lender affected thereby; thereby; and
(e) any amount payable to such Defaulting Revolving Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Revolving Lender pursuant to Section 10.7 but excluding Section 2.242.22) shall, in lieu of being distributed to such Defaulting Revolving Lender and without duplication, be retained by the Administrative Agent in a segregated interest-bearing account reasonably satisfactory to the Administrative Agent and the applicable Borrower(s) Borrower 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 Revolving Lender to the Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Lender to any Issuing Lender or any Swingline Lender hereunder[reserved], (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or a Swingline Lender, held in such account as cash collateral for existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future funding obligations of such Defaulting Lender in respect of any existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future participation in any Swingline Loan or Letter of Credit[reserved], (iv) fourth, to the funding of any Revolving Loan 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 applicable Borrower(s)Borrower, unless such Defaulting Revolving Lender has no remaining unutilized Revolving Commitment, held in such account as cash collateral for future funding obligations of the Defaulting Revolving Lender in respect of any Revolving Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to any Issuing Lender or any Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by such Issuing Lender or such Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement[reserved], (vii) seventh, to the payment of any amounts owing to the applicable Borrower(s) Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower(s) against such Defaulting Revolving Lender as a result of such Defaulting Revolving Lender’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Revolving Lender or as otherwise directed by a court of competent jurisdiction, provided, that, with respect to this clause (viii), if such payment is (A) a prepayment of the principal amount of any Revolving Loans or Reimbursement Obligations as to which a Defaulting Revolving Lender has funded its participation and (B) made at a time when the conditions set forth in Section 5.2 5.3 are satisfied, such payment shall be applied solely to prepay the Revolving Loans of, and Reimbursement Obligations owed to, of all Revolving Lenders that are not Defaulting Revolving Lenders under the Revolving Facility pro rata prior to being applied to the prepayment of any Revolving Loans of, or Reimbursement Obligations owed to, of any Defaulting Revolving Lender. On the Revolving Termination Date, any remaining amounts not previously applied (except for amounts in connection with clause (vii) above) shall be returned to the applicable Defaulting Revolving Lender. In the event that the Administrative Agent, the applicable Borrower(s), each Issuing Lender and each Swingline Lender each reasonably determines that any such Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the outstanding Swingline Loans and outstanding Letters of Credit 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 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 Revolving Percentage and (ii) any arrangements made by the applicable Borrower(s) pursuant to clause (b)(ii) above shall be terminated and any cash collateral or arrangement provided by such Borrower(s) in accordance thereto will be terminated or promptly returned to such Borrower(s), as applicable. The provisions of this Agreement relating to funding, payment and other matters with respect to the Revolving Facility may be adjusted by the Administrative Agent, with the consent of the Borrowers Borrower (such consent not to be unreasonably withheld), to the extent necessary to give effect to the provisions of this Section 2.282.27. The provisions of this Section 2.28 2.27 may not be amended, supplemented or modified without, in addition to consents required by Section 10.1, the prior written consent of the Administrative Agent, the Swingline Lenders, the Issuing Lenders, the Borrowers Borrower and any Defaulting Revolving Lenders. Subject to Section 10.19, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Revolving Lender arising from such Lender becoming a Defaulting Revolving Lender, including any claim of a non-Defaulting Revolving Lender as a result of such non-Defaulting Revolving Lender’s increased exposure following such reallocation.
Appears in 1 contract
Defaulting Revolving Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Credit Lender becomes a Defaulting Revolving Lender, then the following provisions shall apply for so long as such Revolving Credit Lender is a Defaulting Revolving Lender:
(a) commitment fees to the extent permitted by applicable law, the Commitment Fees shall cease to accrue on the Available unfunded portion of the Revolving Credit Commitment (if any) of such Defaulting Revolving Lender pursuant to Section 2.10(a);2.23.
(b) to the extent permitted by applicable law, the Revolving Credit Commitment and the Total Revolving Credit Usage of such Defaulting Revolving Lender shall be disregarded in any determination of whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.10); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.10, require the consent of such Defaulting Revolving Lender in accordance with the terms hereof.
(c) if there are any Swingline Loans outstanding or Letters Letter of Credit outstanding Outstandings exists at the time such Revolving Credit Lender becomes a Defaulting Lender Revolving Lender, then:
(i) all or any part of such outstanding Swingline Loans or outstanding the Letter of Credit Outstandings (other than any portion thereof attributable to unreimbursed amounts drawn under Letters of Credit with respect to which such Defaulting Revolving Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(g)) of such Defaulting Revolving Lender shall be reallocated among the Revolving Credit Lenders that are not Defaulting Revolving Lenders in accordance with their respective Revolving Class Percentages but only to the extent that (A) the sum Total Revolving Credit Usage held by each Revolving Credit Lender that is not a Defaulting Revolving Lender would not exceed such Revolving Credit Lender’s Revolving Credit Commitment, (B) the Total Revolving Credit Usage of all outstanding Revolving Extensions of Credit of the Revolving Lenders that are not Defaulting Revolving Lenders does would not exceed the total of all Revolving Commitments sum of the Revolving Credit Commitments held by all Revolving Credit Lenders that are not Defaulting Revolving Lenders and (for C) the avoidance conditions set forth in Section 4.02 are satisfied at the time of doubtsuch reallocation (and, no Lender unless the Borrower shall have otherwise notified the Revolving Administrative Agent at such time, the Borrower shall be required deemed to make have represented and warranted that such conditions are satisfied at such time); provided that no reallocation under this clause (i) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Revolving Extensions Lender arising from that Lender having become a Defaulting Revolving Lender, including any claim of Credit in excess a non-Defaulting Revolving Lender as a result of its such non-Defaulting Revolving Commitment)Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable the Borrower shall within one Business Day following notice by the Revolving Administrative Agent Agent, cash collateralize for the benefit of the applicable Fronting Bank (xand to the reasonable satisfaction of such Fronting Bank) first, prepay the portion of such Defaulting Revolving Lender’s Revolving Percentage of the outstanding Swingline Loans (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, (1) if a drawing is made under any Letter of Credit, such Borrower shall reimburse the applicable Issuing Lender in accordance with Section 3.5 and (2) if a Letter of Credit is requested by such Borrower in accordance with Section 3.2 during any period where there is a Defaulting Lender Outstandings that is a Revolving Lender, such Borrower shall enter into an arrangement reasonably satisfactory to the applicable Issuing Lender to cover in whole or in part (which such arrangement may include cash collateralization) the exposure of the applicable Issuing Lender related to the participating interests of such Defaulting Lender in such newly issued Letter of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) has not been reallocated for so long as such Lender Letter of Credit Outstandings is a Defaulting Lender or until such Lender is replaced pursuant to Section 2.24outstanding;
(iii) if and so long as a the Borrower cash collateralizes any portion of such Defaulting Revolving Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings pursuant to clause (ii) above, then such then, to the extent permitted by applicable law, the Borrower shall not be required to pay any fees to such Defaulting Revolving Lender pursuant to clause (i) of Section 3.3 2.24 with respect theretoto such portion of such Defaulting Revolving Lender’s Letter of Credit Outstandings for so long as such Defaulting Revolving Lender’s Letter of Credit Outstandings is cash collateralized;
(iv) upon if any reallocation described in portion of the Letter of Credit Outstandings of such Defaulting Revolving Lender is reallocated pursuant to clause (i) above, then the fees payable to the Revolving Lenders pursuant to Sections 2.10(aSection 2.23 and clause (i) and 3.3 of Section 2.24 shall be adjusted accordingly to re-allocate give effect to such fees among the Revolving Lenders which are not Defaulting Lenders; andreallocation;
(v) if all or any portion of such Defaulting Revolving Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Issuing Lender Fronting Bank or any other Lender hereunder, to the extent permitted by applicable law, all letter of credit fees payable under clause (i) of Section 3.3 2.24 with respect to such Defaulting Revolving Lender’s Revolving Percentage of outstanding Letters Letter of Credit Outstandings shall be payable to such Fronting Bank until and to the relevant Issuing Lender until extent that such Letter of Credit Outstandings is reallocated and/or cash collateralization and/or reallocation occurs;collateralized; and
(cd) no Swingline so long as such Revolving Credit Lender is a Defaulting Revolving Lender, the applicable Fronting Bank shall be required to fund any Swingline Loan and no Issuing Lender shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless it is reasonably satisfied that the related exposure and the Defaulting Revolving Lender’s then Letter of Credit Outstandings will be fully covered in whole or in part by the Revolving Credit Commitments of the non-Defaulting Revolving Lenders that are not Defaulting Lenders and/or cash collateral or other arrangements will be provided by each applicable the Borrower in accordance with clause (b)(ii) aboveSection 2.29(c), and participating interests interest in any such newly issued issued, amended, renewed or increased extended Letter of Credit or newly made Swingline Loan shall will be (i) allocated among the non-Defaulting Revolving Lenders that are not Defaulting Lenders and/or (ii) covered by arrangements made by each applicable Borrower pursuant to clause (b)(ii) above in a manner consistent with clauses (b)(i) and (iiSection 2.29(c)(i) (and any such Defaulting Lenders Revolving Lender shall not participate therein);
(d) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Majority Facility Lenders under the Revolving Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (d) shall not apply in the case of an amendment, waiver or other modification requiring the consent of all Lenders or each Lender affected thereby; and.
(e) 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 10.7 but excluding Section 2.24) shall, in lieu of being distributed to such Defaulting Lender and without duplication, be retained by the Administrative Agent in a segregated interest-bearing account reasonably satisfactory to the Administrative Agent and the applicable Borrower(s) 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 a Revolving Credit 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, Bankruptcy Event shall continue or (ii) second, pro rata, to the payment of applicable Fronting Bank has a good faith belief that any amounts owing by such Defaulting Lender to any Issuing Lender or any Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or a Swingline Lender, held in such account as cash collateral for existing or (unless such Defaulting Revolving Credit Lender has no remaining unutilized Revolving Commitment) future funding defaulted in fulfilling its obligations of under one or more other agreements in which such Defaulting Lender in respect of commits to extend credit, the applicable Fronting Bank shall not be required to issue, amend, renew or extend any existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future participation in any Swingline Loan or Letter of Credit, (iv) fourthunless such Fronting Bank shall have entered into arrangements with the Borrower or the applicable Revolving Credit Lender, satisfactory to the funding of such Fronting Bank to defease any Revolving 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, hereunder.
(vf) fifth, if so determined by the Administrative Agent and the applicable Borrower(s), unless such Defaulting Lender has no remaining unutilized Revolving Commitment, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Revolving Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to any Issuing Lender or any Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by such Issuing Lender or such 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 applicable Borrower(s) as a result of any judgment of a court of competent jurisdiction obtained by such Borrower(s) 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, with respect to this clause (viii), if such payment is (A) a prepayment of the principal amount of any Revolving Loans or Reimbursement Obligations as to which a Defaulting Lender has funded its participation and (B) made at a time when the conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to prepay the Revolving Loans of, and Reimbursement Obligations owed to, all Revolving Lenders that are not Defaulting Lenders under the Revolving Facility pro rata prior to being applied to the prepayment of any Revolving Loans of, or Reimbursement Obligations owed to, any Defaulting Lender. On the Revolving Termination Date, any remaining amounts not previously applied (except for amounts in connection with clause (vii) above) shall be returned to the applicable Defaulting Lender. In the event that the Revolving Administrative Agent, the Borrower, and the applicable Borrower(s), Fronting Bank each Issuing Lender and each Swingline Lender each reasonably determines agrees that any such a Defaulting Revolving Lender has adequately remedied all matters that caused such the applicable Revolving Credit Lender to be a Defaulting Revolving Lender, then (i) the outstanding Swingline Loans and outstanding Letters Letter of Credit Outstandings of the Revolving Credit Lenders shall be readjusted to reflect the inclusion of such Revolving Credit Lender’s Revolving Credit Commitment and on such date such Revolving Credit Lender shall purchase at par such of the Revolving Credit Loans of the other Revolving Credit Lenders (other than Swingline Loans) as the Revolving Administrative Agent shall determine may be necessary in order for such Revolving Credit Lender to hold such Revolving Credit Loans in accordance with its Revolving Percentage and (ii) any arrangements made by the applicable Borrower(s) pursuant to clause (b)(ii) above shall be terminated and any cash collateral or arrangement Class Percentage; provided by such Borrower(s) in accordance thereto that no adjustments will be terminated or promptly returned to such Borrower(s), as applicable. The provisions of this Agreement relating to funding, payment and other matters made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Revolving Facility may be adjusted Credit Lender was a Defaulting Revolving Lender; provided further that, except as otherwise expressly agreed by the Administrative Agentaffected parties, with the consent no change hereunder from a Defaulting Revolving Lender to a non-Defaulting Revolving Lender will constitute a waiver or release of the Borrowers (any claim of any party hereunder arising from such consent not to be unreasonably withheld), to the extent necessary to give effect to the provisions of this Section 2.28. The provisions of this Section 2.28 may not be amended, supplemented or modified without, in addition to consents required by Section 10.1, the prior written consent of the Administrative Agent, the Swingline Lenders, the Issuing Lenders, the Borrowers and any Revolving Credit Lender’s having been a Defaulting LendersRevolving Lender.
Appears in 1 contract
Samples: Term Loan and Revolving Credit Agreement (Federal-Mogul Holdings Corp)
Defaulting Revolving Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Credit Lender becomes a Defaulting Revolving Lender, then the following provisions shall apply for so long as such Revolving Credit Lender is a Defaulting Revolving Lender:
(a) commitment fees to the extent permitted by applicable law, the Commitment Fees shall cease to accrue on the Available unfunded portion of the Revolving Credit Commitment (if any) of such Defaulting Revolving Lender pursuant to Section 2.10(a);2.23
(b) to the extent permitted by applicable law, the Revolving Credit Commitment and the Total Revolving Credit Usage of such Defaulting Revolving Lender shall be disregarded in any determination of whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.10); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.10, require the consent of such Defaulting Revolving Lender in accordance with the terms hereof
(c) if there are any Swingline Loans outstanding or Letters Letter of Credit outstanding Outstandings exists at the time such Revolving Credit Lender becomes a Defaulting Lender Revolving Lender, then:
(i) all or any part of such outstanding Swingline Loans or outstanding the Letter of Credit Outstandings (other than any portion thereof attributable to unreimbursed amounts drawn under R/C Letters of Credit with respect to which such Defaulting Revolving Lender shall have funded its participation as contemplated by Sections 2.05(e) and 2.05(g)) of such Defaulting Revolving Lender shall be reallocated among the Revolving Credit Lenders that are not Defaulting Revolving Lenders in accordance with their respective Revolving Class Percentages but only to the extent that (A) the sum Total Revolving Credit Usage held by each Revolving Credit Lender that is not a Defaulting Revolving Lender would not exceed such Revolving Credit Lender’s Revolving Credit Commitment, (B) the Total Revolving Credit Usage of all outstanding Revolving Extensions of Credit of the Revolving Lenders that are not Defaulting Revolving Lenders does would not exceed the total of all Revolving Commitments sum of the Revolving Credit Commitments held by all Revolving Credit Lenders that are not Defaulting Revolving Lenders and (for C) the avoidance conditions set forth in Section 4.02 are satisfied at the time of doubtsuch reallocation (and, no Lender unless the Borrower shall have otherwise notified the Revolving Administrative Agent at such time, the Borrower shall be required deemed to make have represented and warranted that such conditions are satisfied at such time); provided that no reallocation under this clause (i) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Revolving Extensions Lender arising from that Lender having become a Defaulting Revolving Lender, including any claim of Credit in excess a non-Defaulting Revolving Lender as a result of its such non-Defaulting Revolving Commitment)Lender’s increased exposure following such reallocation;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable the Borrower shall within one Business Day following notice by the Revolving Administrative Agent Agent, cash collateralize for the benefit of the applicable Fronting Bank (xand to the reasonable satisfaction of such Fronting Bank) first, prepay the portion of such Defaulting Revolving Lender’s Revolving Percentage of the outstanding Swingline Loans (after giving effect to any partial reallocation pursuant to clause (i) above) and (y) second, (1) if a drawing is made under any Letter of Credit, such Borrower shall reimburse the applicable Issuing Lender in accordance with Section 3.5 and (2) if a R/C Letter of Credit is requested by such Borrower in accordance with Section 3.2 during any period where there is a Defaulting Lender Outstandings that is a Revolving Lender, such Borrower shall enter into an arrangement reasonably satisfactory to the applicable Issuing Lender to cover in whole or in part (which such arrangement may include cash collateralization) the exposure of the applicable Issuing Lender related to the participating interests of such Defaulting Lender in such newly issued Letter of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) has not been reallocated for so long as such Lender R/C Letter of Credit Outstandings is a Defaulting Lender or until such Lender is replaced pursuant to Section 2.24outstanding;
(iii) if and so long as a the Borrower cash collateralizes any portion of such Defaulting Revolving Lender’s Revolving Percentage of outstanding Letters R/C Letter of Credit Outstandings pursuant to clause (ii) above, then such then, to the extent permitted by applicable law, the Borrower shall not be required to pay any fees to such Defaulting Revolving Lender pursuant to clause (i) of Section 3.3 2.24 with respect theretoto such portion of such Defaulting Revolving Lender’s R/C Letter of Credit Outstandings for so long as such Defaulting Revolving Lender’s R/C Letter of Credit Outstandings is cash collateralized;
(iv) upon if any reallocation described in portion of the R/C Letter of Credit Outstandings of such Defaulting Revolving Lender is reallocated pursuant to clause (i) above, then the fees payable to the Revolving Lenders pursuant to Sections 2.10(aSection 2.23 and clause (i) and 3.3 of Section 2.24 shall be adjusted accordingly to re-allocate give effect to such fees among the Revolving Lenders which are not Defaulting Lenders; andreallocation;
(v) if all or any portion of such Defaulting Revolving Lender’s Revolving Percentage of outstanding Letters R/C Letter of Credit Outstandings is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Issuing Lender Fronting Bank or any other Lender hereunder, to the extent permitted by applicable law, all letter of credit fees payable under clause (i) of Section 3.3 2.24 with respect to such Defaulting Revolving Lender’s Revolving Percentage of outstanding Letters R/C Letter of Credit Outstandings shall be payable to such Fronting Bank until and to the relevant Issuing Lender until extent that such R/C Letter of Credit Outstandings is reallocated and/or cash collateralization and/or reallocation occurs;collateralized; and
(cd) no Swingline so long as such Revolving Credit Lender is a Defaulting Revolving Lender, the applicable Fronting Bank shall be required to fund any Swingline Loan and no Issuing Lender shall not be required to issue, amend amend, renew or increase extend any Letter of Credit, unless it is reasonably satisfied that the related exposure and the Defaulting Revolving Lender’s then Letter of Credit Outstandings will be fully covered in whole or in part by the Revolving Credit Commitments of the non-Defaulting Revolving Lenders that are not Defaulting Lenders and/or cash collateral or other arrangements will be provided by each applicable the Borrower in accordance with clause (b)(ii) aboveSection 2.29(c), and participating interests interest in any such newly issued issued, amended, renewed or increased extended Letter of Credit or newly made Swingline Loan shall will be (i) allocated among the non-Defaulting Revolving Lenders that are not Defaulting Lenders and/or (ii) covered by arrangements made by each applicable Borrower pursuant to clause (b)(ii) above in a manner consistent with clauses (b)(i) and (iiSection 2.29(c)(i) (and any such Defaulting Lenders Revolving Lender shall not participate therein);
(d) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Majority Facility Lenders under the Revolving Facility have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (d) shall not apply in the case of an amendment, waiver or other modification requiring the consent of all Lenders or each Lender affected thereby; and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 10.7 but excluding Section 2.24) shall, in lieu of being distributed to such Defaulting Lender and without duplication, be retained by the Administrative Agent in a segregated interest-bearing account reasonably satisfactory to the Administrative Agent and the applicable Borrower(s) 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 any Issuing Lender or any Swingline Lender hereunder, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Lender or a Swingline Lender, held in such account as cash collateral for existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future funding obligations of such Defaulting Lender in respect of any existing or (unless such Defaulting Lender has no remaining unutilized Revolving Commitment) future participation in any Swingline Loan or Letter of Credit, (iv) fourth, to the funding of any Revolving Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the applicable Borrower(s), unless such Defaulting Lender has no remaining unutilized Revolving Commitment, held in such account as cash collateral for future funding obligations of the Defaulting Lender in respect of any Revolving Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to any Issuing Lender or any Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by such Issuing Lender or such 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 applicable Borrower(s) as a result of any judgment of a court of competent jurisdiction obtained by such Borrower(s) 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, with respect to this clause (viii), if such payment is (A) a prepayment of the principal amount of any Revolving Loans or Reimbursement Obligations as to which a Defaulting Lender has funded its participation and (B) made at a time when the conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to prepay the Revolving Loans of, and Reimbursement Obligations owed to, all Revolving Lenders that are not Defaulting Lenders under the Revolving Facility pro rata prior to being applied to the prepayment of any Revolving Loans of, or Reimbursement Obligations owed to, any Defaulting Lender. On the Revolving Termination Date, any remaining amounts not previously applied (except for amounts in connection with clause (vii) above) shall be returned to the applicable Defaulting Lender. In the event that the Administrative Agent, the applicable Borrower(s), each Issuing Lender and each Swingline Lender each reasonably determines that any such Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the outstanding Swingline Loans and outstanding Letters of Credit 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 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 Revolving Percentage and (ii) any arrangements made by the applicable Borrower(s) pursuant to clause (b)(ii) above shall be terminated and any cash collateral or arrangement provided by such Borrower(s) in accordance thereto will be terminated or promptly returned to such Borrower(s), as applicable. The provisions of this Agreement relating to funding, payment and other matters with respect to the Revolving Facility may be adjusted by the Administrative Agent, with the consent of the Borrowers (such consent not to be unreasonably withheld), to the extent necessary to give effect to the provisions of this Section 2.28. The provisions of this Section 2.28 may not be amended, supplemented or modified without, in addition to consents required by Section 10.1, the prior written consent of the Administrative Agent, the Swingline Lenders, the Issuing Lenders, the Borrowers and any Defaulting Lenders.
Appears in 1 contract
Samples: Term Loan and Revolving Credit Agreement (Federal Mogul Corp)
