Common use of Delinquent Lender; Deteriorating Lender Clause in Contracts

Delinquent Lender; Deteriorating Lender. (a) If for any reason any Lender shall become a Deteriorating Lender or shall fail or refuse to abide by its obligations under this Agreement, including without limitation its obligation to make available to Agent its Pro Rata Share of any Loans, expenses or setoff or purchase its Pro Rata Share of a participation interest in the aggregate unreimbursed amount of all drawn Letters of Credit, and such failure is not cured within one (1) Business Day after receipt from Agent of written notice thereof, then, in addition to the rights and remedies that may be available to the Lender Parties, the Credit Parties or any other party at law or in equity, and not at limitation thereof, (i) such Deteriorating Lender’s or Delinquent Lender’s right to participate in the administration of, or decision-making rights related to, the Obligations, this Agreement or the other Loan Documents shall be suspended during the pendency of such failure or refusal, and (ii) a Deteriorating Lender or Delinquent Lender shall be deemed to have assigned any and all payments due to it from the Credit Parties, whether on account of outstanding Loans, interest, fees or otherwise, to the remaining non-Delinquent Lenders for application to, and reduction of, their proportionate shares of all outstanding Obligations until, as a result of application of such assigned payments the Lenders’ respective Pro Rata Shares of all outstanding Obligations shall have returned to those in effect immediately prior to such delinquency and without giving effect to the nonpayment causing such delinquency, and (iii) at the option of Agent, any amount payable to such Deteriorating Lender or Delinquent Lender hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Deteriorating Lender or Delinquent Lender, be retained by Agent as cash collateral for future funding obligations of the Deteriorating Lender or Delinquent Lender in respect of any Loan or existing or future participating interest in any Letter of Credit. The Delinquent Lender’s decision-making and participation rights and rights to payments as set forth in clauses (i) and (ii) hereinabove shall be restored only upon the payment by the Delinquent Lender of its Pro Rata Share of any Obligations, any participation obligation, or expenses as to which it is delinquent, together with interest thereon at the rate set forth in Section 11.5(b)(i) hereof from the date when originally due until the date upon which any such amounts are actually paid. (b) The non-Delinquent Lenders shall also have the right, but not the obligation, in their respective, sole and absolute discretion, to cause the termination and assignment, without any further action by the Deteriorating Lender or Delinquent Lender for no cash consideration (pro rata, based on the respective Commitments of those Lenders electing to exercise such right), of the Deteriorating Lender’s or Delinquent Lender’s Commitment to fund future Loans. Upon any such purchase of the Pro Rata Share of any Deteriorating Lender or Delinquent Lender, the Deteriorating Lender’s or Delinquent Lender’s share in future Advances and its rights under the Loan Documents with respect thereto shall terminate on the date of purchase, and the Deteriorating Lender or Delinquent Lender shall promptly execute all documents reasonably requested to surrender and transfer such interest, including, if so requested, a Lender Addition Agreement. (c) Each Deteriorating Lender and Delinquent Lender shall indemnify Agent and each non-Deteriorating Lender and non-Delinquent Lender from and against any and all loss, damage or expenses, including but not limited to reasonable attorneys’ fees and funds advanced by Agent or by any non-delinquent Lender, on account of a Deteriorating Lender’s or a Delinquent Lender’s failure to timely fund its Commitment of a Revolving Loan or to otherwise perform its obligations under the Loan Documents.

Delinquent Lender; Deteriorating Lender. (a) If for any reason any Lender shall become a Deteriorating Lender or (i) (A) shall fail or refuse to abide by its obligations under this Agreement, including without limitation its obligation to make available to Administrative Agent its Pro Rata Share Commitment Percentage of any Revolving Credit Loans, expenses or setoff or purchase its Pro Rata Share Commitment Percentage of a participation interest in the aggregate unreimbursed amount Swingline Loans or Letter of all drawn Letters of Credit, Credit Outstandings and such failure is not cured within one (1) Business Day after of receipt from the Administrative Agent of written notice thereof, or (B) shall fail, within three (3) Business Days after request by the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its Commitments (each, a “Delinquent Lender”), or (ii) is a Deteriorating Lender, then, in addition to the rights and remedies that may be available to the Lender other Secured Parties, the Credit Loan Parties or any other party at law or in equity, and not at in limitation thereof, , (i) such Deteriorating Delinquent Lender’s or Delinquent Non-Performing Deteriorating Lender’s ’s, as applicable, right to participate in the administration of, or decision-making rights related to, the ObligationsRevolving Credit Loans, this Agreement or the other Loan Documents shall be suspended during the pendency of such failure or refusal, and , (ii) a Deteriorating Lender or Delinquent Lender shall be deemed to have assigned any and all payments due to it from the Credit Parties, whether on account of outstanding Loans, interest, fees or otherwise, to the remaining non-Delinquent Lenders for application to, and reduction of, their proportionate shares of all outstanding Obligations until, as a result of application of such assigned payments the Lenders’ respective Pro Rata Shares of all outstanding Obligations shall have returned to those in effect immediately prior to such delinquency and without giving effect to the nonpayment causing such delinquency, and (iii) at the option of Agent, any amount payable to such Deteriorating Lender or Delinquent Lender hereunder (whether on account payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Delinquent Lender or Non-Performing Deteriorating Lender, as applicable (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) shall), or received by the Administrative Agent from a Delinquent Lender or Non-Performing Deteriorating Lender, as applicable, pursuant to SECTION 9.09 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Delinquent Lender or Non-Performing Deteriorating Lender, as applicable, to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Delinquent Lender or Non-Performing Deteriorating Lender, as applicable, to the Issuing Banks or Swingline Lender hereunder; third, to Cash Collateralize the Issuing Banks’ Fronting Exposure with respect to such Delinquent Lender or Non-Performing Deteriorating Lender, as applicable, in lieu accordance with SECTION 2.13(g); fourth, as the Lead Borrower may request (so long as no Default or Event of being distributed Default exists), to the funding of any Revolving Credit Loan in respect of which such Deteriorating Delinquent Lender or Non-Performing Deteriorating Lender, as applicable, has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Lead Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Delinquent Lender’s or Non-Performing Deteriorating Lender’s, be retained by Agent as cash collateral for applicable, potential future funding obligations with respect to Revolving Credit Loans under this Agreement and (y) Cash Collateralize the Issuing Banks’ future Fronting Exposure with respect to such Delinquent Lender or Non-Performing Deteriorating Lender, as applicable, with respect to future Letters of Credit issued under this Agreement in accordance with SECTION 2.13(g); sixth, to the payment of any amounts owing to the Lenders, the Issuing Banks or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Banks or the Swingline Lender against such Delinquent Lender or Non-Performing Deteriorating Lender, as applicable, as a result of such Delinquent Lender’s or Non-Performing Deteriorating Lender’s, as applicable, breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Delinquent Lender or Non-Performing Deteriorating Lender, as applicable, as a result of such Delinquent Lender’s or Deteriorating Lender’s, as applicable, breach of its obligations under this Agreement; and eighth, to such Delinquent Lender or Non-Performing Deteriorating Lender, as applicable, or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the Deteriorating Lender principal amount of any Revolving Credit Loans or Delinquent Lender obligations in respect of any Loan Letters of Credit in respect of which such Delinquent Lender or existing Non-Performing Deteriorating Lender, as applicable, has not fully funded its appropriate share, and (y) such Revolving Credit Loans were made or future participating interest in any Letter the related Letters of Credit. The Delinquent Lender’s decision-making and participation rights and rights to payments as Credit were issued at a time when the conditions set forth in clauses (i) and (ii) hereinabove SECTION 4.02 were satisfied or waived, such payment shall be restored only upon applied solely to pay the Revolving Credit Loans of, and obligations in respect of Letters of Credit owed to, all Performing Lenders on a pro rata basis prior to being applied to the payment of any Revolving Credit Loans of, or obligations in respect of Letters of Credit owed to, such Delinquent Lender or Non-Performing Deteriorating Lender, as applicable, until such time as all Revolving Credit Loans and obligations in respect of Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to SECTION 8.16(e). Any payments, prepayments or other amounts paid or payable to a Delinquent Lender of its Pro Rata Share of any Obligationsor Non-Performing Deteriorating Lender, any participation obligationas applicable, that are applied (or held) to pay amounts owed by a Delinquent Lender or Non-Performing Deteriorating Lender, as applicable, or expenses as to which it is delinquent, together with interest thereon at the rate set forth in Section 11.5(b)(ipost Cash Collateral pursuant to this SECTION 8.16(a)(iii) hereof from the date when originally due until the date upon which any shall be deemed paid to and redirected by such amounts are actually paid. (b) The non-Delinquent Lenders shall also have the right, but not the obligation, in their respective, sole and absolute discretion, to cause the termination and assignment, without any further action by the Deteriorating Lender or Delinquent Lender for no cash consideration (pro rata, based on the respective Commitments of those Lenders electing to exercise such right), of the Non-Performing Deteriorating Lender’s or Delinquent Lender’s Commitment to fund future Loans. Upon any such purchase of the Pro Rata Share of any Deteriorating Lender or Delinquent Lender, the Deteriorating Lender’s or Delinquent Lender’s share in future Advances and its rights under the Loan Documents with respect thereto shall terminate on the date of purchaseas applicable, and each Lender irrevocably consents hereto. Notwithstanding the Deteriorating Lender or Delinquent Lender shall promptly execute all documents reasonably requested to surrender and transfer such interest, including, if so requestedforegoing, a Lender Addition Agreement. (c) Each shall not be a Delinquent Lender or a Deteriorating Lender and solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Delinquent Lender or a Deteriorating Lender (including as a Non-Performing Deteriorating Lender) under this clause (a), and of the effective date of such status, shall indemnify be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Delinquent Lender or Deteriorating Lender (including as a Non-Performing Deteriorating Lender), as applicable (subject to SECTION 8.16(g)) as of the date established Administrative therefor by the Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Lead Borrower, the Issuing Banks, the Swingline Lender and each non-Deteriorating other Lender and non-Delinquent Lender from and against any and all loss, damage or expenses, including but not limited to reasonable attorneys’ fees and funds advanced by Agent or by any non-delinquent Lender, on account of a Deteriorating Lender’s or a Delinquent Lender’s failure to timely fund its Commitment of a Revolving Loan or to otherwise perform its obligations under the Loan Documentspromptly following such determination.