Funding Where there is a Defaulting Lender. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender: (i) the standby fees payable pursuant to Section 3.4 shall cease to accrue on the unused portion of the Individual Commitment Amount of such Defaulting Lender if and for so long as such Lender is a Defaulting Lender; (ii) a Defaulting Lender shall not be included in determining whether, and the Individual Commitment Amount and the Lender's proportion of the Aggregate Principal Amount of such Defaulting Lender shall be excluded in determining whether, all Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 21.16); provided that any waiver, amendment or modification that (A) applies to such Defaulting Lender in a manner that differs in any material respect from its application to other affected Lenders, (B) increases the Individual Commitment Amount of such Defaulting Lender, (C) extends any Maturity Date applicable to such Defaulting Lender, (D) decreases the applicable pricing margin or standby fees applicable to such Defaulting Lender or (E) postpones, reduces or waives any principal payment due to such Defaulting Lender hereunder shall in each case require the consent of such Defaulting Lender; and (iii) for certainty, the Borrower shall retain and reserve its other rights and remedies respecting each Defaulting Lender; provided that the Agent shall only be required to give effect to (i) and (ii) above if the Agent has actual knowledge that a Lender is a Defaulting Lender. If the Agent acquires actual knowledge that a Lender is a Defaulting Lender, then the Agent shall promptly notify the Borrower that such Lender is a Defaulting Lender (and such Lender shall be deemed to have consented to such disclosure); provided that the Agent shall have no duty to inquire as to whether a Lender is a Defaulting Lender. (b) If the Agent has actual knowledge that a Lender is a Defaulting Lender at the time that the Agent receives a Notice of Drawdown that relates to a Letter of Credit or that either relates to a conversion of a Swingline Advance into a Syndicated Borrowing or will result in a currency conversion, then each Non-Defaulting Lender shall fund its Lender's proportion of such affected Obligations (and, in calculating such Lender's proportion, the applicable Individual Commitment Amount of each such Defaulting Lender shall be ignored); provided that such re- allocation may only be effected if and to the extent that (i) such re-allocation would not cause any Non-Defaulting Lender's proportion of the Aggregate Principal Amount to exceed its Individual Commitment Amount and (ii) the conditions precedent in Section 6.2 are satisfied at such time. Each Defaulting Lender agrees to indemnify each Non-Defaulting Lender for any amounts paid by such Non-Defaulting Lender under this Section 21.19 and which would otherwise have been paid by the Defaulting Lender if its Individual Commitment Amount had been included in determining the Lender's Rateable Portion of such affected Advances. (c) If any Letter of Credit is outstanding at the time that a Lender becomes a Defaulting Lender, then: (i) all or any part of such Defaulting Lender's Rateable Portion of such Letter of Credit shall be re-allocated among the Non-Defaulting Lenders in accordance with their respective Individual Commitment Amounts; provided that such re-allocation may only be effected if and to the extent that (A) such re-allocation would not cause any Non-Defaulting Lender's proportion of the Aggregate Principal Amount to exceed its Individual Commitment Amount and (B) the conditions precedent in Sections 6.2 and 6.3 are satisfied at such time; (ii) if the re-allocation described in clause (i) above cannot be effected, or can only partially be effected, then such Defaulting Lender shall, within one Banking Day following notice by the Agent, provide cash collateral for such Defaulting Lender's Individual Commitment Amount of such Letter of Credit (after giving effect to any partial re-allocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 21.18 for so long as such Letter of Credit is outstanding, and if such Defaulting Lender shall fail to provide such cash collateral, then, at the request of the applicable Issuing Lender, the Borrower shall provide such cash collateral to the Agent; and (iii) if the Individual Commitment Amounts of the Non-Defaulting Lenders are re-allocated pursuant to this Section 21.19(c), then the issuance fees payable to the Lenders pursuant to Section 3.3 shall be adjusted to give effect to such re-allocations in accordance with each such Non-Defaulting Lender's Individual Commitment Amount, and if the Borrower provided cash collateral pursuant to clause (ii) above, the Borrower shall not be required to pay the Issuance Fee attributable to the cash collateralized exposure of such Letter of Credit. (d) So long as any Lender is a Defaulting Lender, no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, and no Swingline Lender shall be required to make any Swingline Advance, unless such Issuing Lender or Swing Line Lender, as applicable, is satisfied that the related exposure will be 100% covered by the Individual Commitment Amounts of the Non-Defaulting Lenders and/or cash collateralized in accordance with Section 21.19(c), and participating interests in any such newly issued or increased Letter of Credit or Swingline Advance shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 21.19(b) or 21.19(c)(i) as applicable (and Defaulting Lenders shall not participate therein). (e) If any Lender shall cease to be a Defaulting Lender, then, upon becoming aware of such change, the Agent shall notify the Non-Defaulting Lenders and (in accordance with the written direction of the Agent) such Lender (which has ceased to be a Defaulting Lender) shall purchase, and the Non-Defaulting Lenders shall on a rateable basis sell and assign to such Lender, portions of such Obligations equal in total to such Lender's Individual Commitment Amount thereof without regard to this Section 21.19.
Appears in 1 contract
Funding Where there is a Defaulting Lender. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(i) the standby fees Standby Fee payable pursuant to Section 3.4 shall cease to accrue on the unused portion of the Individual Commitment Amount of such Defaulting Lender if and for so long as such Lender is a Defaulting Lender;
(ii) a Defaulting Lender shall not be included in determining whether, and the Individual Commitment Amount and the Lender's proportion of the Aggregate Principal Amount of such Defaulting Lender shall be excluded in determining whether, all Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 21.16); provided that any waiver, amendment or modification that (A) applies to such Defaulting Lender in a manner that differs in any material respect from its application to other affected Lenders, (B) increases the Individual Commitment Amount of such Defaulting Lender, (C) extends any Maturity Date applicable to such Defaulting Lender, (D) decreases the applicable pricing margin or standby fees Applicable Margin applicable to such Defaulting Lender or (E) postpones, reduces or waives any principal payment due to such Defaulting Lender hereunder shall in each case require the consent of such Defaulting Lender; and
(iii) for certainty, the Borrower shall retain and reserve its other rights and remedies respecting each Defaulting Lender; provided that the Agent shall only be required to give effect to (i) and (ii) above if the Agent has actual knowledge that a Lender is a Defaulting Lender. If the Agent acquires actual knowledge that a Lender is a Defaulting Lender, then the Agent shall promptly notify the Borrower that such Lender is a Defaulting Lender (and such Lender shall be deemed to have consented to such disclosure); provided that the Agent shall have no duty to inquire as to whether a Lender is a Defaulting Lender.
(b) If the Agent has actual knowledge that a Lender is a Defaulting Lender at the time that the Agent receives a Notice of Drawdown that relates to a Letter of Credit or that either relates to a conversion of a Swingline Advance into a Syndicated Borrowing or will result in a currency conversion, then each Non-Non- Defaulting Lender shall fund its Lender's proportion of such affected Obligations (and, in calculating such Lender's proportion, the applicable Individual Commitment Amount of each such Defaulting Lender shall be ignored); provided that such re- allocation may only be effected if and to the extent that (i) such re-allocation would not cause any Non-Non- Defaulting Lender's proportion of the Aggregate Principal Amount to exceed its Individual Commitment Amount and (ii) the conditions precedent in Section 6.2 are satisfied at such time. Each Defaulting Lender agrees to indemnify each Non-Defaulting Lender for any amounts paid by such Non-Defaulting Lender under this Section 21.19 and which would otherwise have been paid by the Defaulting Lender if its Individual Commitment Amount had been included in determining the Lender's Rateable Portion of such affected Advances.
(c) If any Letter of Credit is outstanding at the time that a Lender becomes a Defaulting Lender, then:
(i) all or any part of such Defaulting Lender's Rateable Portion of such Letter of Credit shall be re-allocated among the Non-Defaulting Lenders in accordance with their respective Individual Commitment Amounts; provided that such re-allocation may only be effected if and to the extent that (A) such re-allocation would not cause any Non-Non- Defaulting Lender's proportion of the Aggregate Principal Amount to exceed its Individual Commitment Amount and (B) the conditions precedent in Sections 6.2 and 6.3 are satisfied at such time;
(ii) if the re-allocation described in clause (i) above cannot be effected, or can only partially be effected, then such Defaulting Lender shall, within one Banking Day following notice by the Agent, provide cash collateral for such Defaulting Lender's Individual Commitment Amount of such Letter of Credit (after giving effect to any partial re-allocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 21.18 for so long as such Letter of Credit is outstanding, and if such Defaulting Lender shall fail to provide such cash collateral, then, at the request of the applicable Issuing Lender, the Borrower shall provide such cash collateral to the Agent; and
(iii) if the Individual Commitment Amounts of the Non-Defaulting Lenders are re-allocated pursuant to this Section 21.19(c), then the issuance fees payable to the Lenders pursuant to Section 3.3 shall be adjusted to give effect to such re-re- allocations in accordance with each such Non-Defaulting Lender's Individual Commitment Amount, and if the Borrower provided cash collateral pursuant to clause (ii) above, the Borrower shall not be required to pay the Issuance Fee attributable to the cash collateralized exposure of such Letter of Credit.
(d) So long as any Lender is a Defaulting Lender, no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, and no Swingline Lender shall be required to make any Swingline Advance, unless such Issuing Lender or Swing Line Swingline Lender, as applicable, is satisfied that the related exposure will be 100% covered by the Individual Commitment Amounts of the Non-Non- Defaulting Lenders and/or cash collateralized in accordance with Section 21.19(c), and participating interests in any such newly issued or increased Letter of Credit or Swingline Advance shall be allocated among Non-Non- Defaulting Lenders in a manner consistent with Section 21.19(b) or 21.19(c)(i) as applicable (and Defaulting Lenders shall not participate therein).
(e) If any Lender shall cease to be a Defaulting Lender, then, upon becoming aware of such change, the Agent shall notify the Non-Defaulting Lenders and (in accordance with the written direction of the Agent) such Lender (which has ceased to be a Defaulting Lender) shall purchase, and the Non-Defaulting Lenders shall on a rateable basis sell and assign to such Lender, portions of such Obligations equal in total to such Lender's Individual Commitment Amount thereof without regard to this Section 21.19.
Appears in 1 contract
Funding Where there is a Defaulting Lender. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(i) the standby fees Standby Fee payable pursuant to Section 3.4 shall cease to accrue on the unused portion of the Individual Commitment Amount of such Defaulting Lender if and for so long as such Lender is a Defaulting Lender;
(ii) a Defaulting Lender shall not be included in determining whether, and the Individual Commitment Amount and the Lender's proportion of the Aggregate Principal Amount of such Defaulting Lender shall be excluded in determining whether, all Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 21.16); provided that any waiver, amendment or modification that (A) applies to such Defaulting Lender in a manner that differs in any material respect from its application to other affected Lenders, (B) increases the Individual Commitment Amount of such Defaulting Lender, (C) extends any Maturity Date applicable to such Defaulting Lender, (D) decreases the applicable pricing margin or standby fees Applicable Margin applicable to such Defaulting Lender or (E) postpones, reduces or waives any principal payment due to such Defaulting Lender hereunder shall in each case require the consent of such Defaulting Lender; and
(iii) for certainty, the Borrower shall retain and reserve its other rights and remedies respecting each Defaulting Lender; provided that the Agent shall only be required to give effect to (i) and (ii) above if the Agent has actual knowledge that a Lender is a Defaulting Lender. If the Agent acquires actual knowledge that a Lender is a Defaulting Lender, then the Agent shall promptly notify the Borrower that such Lender is a Defaulting Lender (and such Lender shall be deemed to have consented to such disclosure); provided that the Agent shall have no duty to inquire as to whether a Lender is a Defaulting Lender.
(b) If the Agent has actual knowledge that a Lender is a Defaulting Lender at the time that the Agent receives a Notice of Drawdown that relates to a Letter of Credit or that either relates to a conversion of a Swingline Advance into a Syndicated Borrowing or will result in a currency conversion, then each Non-Defaulting Lender shall fund its Lender's proportion of such affected Obligations (and, in calculating such Lender's proportion, the applicable Individual Commitment Amount of each such Defaulting Lender shall be ignored); provided that such re- allocation may only be effected if and to the extent that (i) such re-allocation would not cause any Non-Defaulting Lender's proportion of the Aggregate Principal Amount to exceed its Individual Commitment Amount and (ii) the conditions precedent in Section 6.2 are satisfied at such time. Each Defaulting Lender agrees to indemnify each Non-Defaulting Lender for any amounts paid by such Non-Defaulting Lender under this Section 21.19 and which would otherwise have been paid by the Defaulting Lender if its Individual Commitment Amount had been included in determining the Lender's Rateable Portion of such affected Advances.
(c) If any Letter of Credit is outstanding at the time that a Lender becomes a Defaulting Lender, then:
(i) all or any part of such Defaulting Lender's Rateable Portion of such Letter of Credit shall be re-allocated among the Non-Defaulting Lenders in accordance with their respective Individual Commitment Amounts; provided that such re-allocation may only be effected if and to the extent that (A) such re-allocation would not cause any Non-Defaulting Lender's proportion of the Aggregate Principal Amount to exceed its Individual Commitment Amount and (B) the conditions precedent in Sections 6.2 and 6.3 are satisfied at such time;
(ii) if the re-allocation described in clause (i) above cannot be effected, or can only partially be effected, then such Defaulting Lender shall, within one Banking Day following notice by the Agent, provide cash collateral for such Defaulting Lender's Individual Commitment Amount of such Letter of Credit (after giving effect to any partial re-allocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 21.18 for so long as such Letter of Credit is outstanding, and if such Defaulting Lender shall fail to provide such cash collateral, then, at the request of the applicable Issuing Lender, the Borrower shall provide such cash collateral to the Agent; and
(iii) if the Individual Commitment Amounts of the Non-Defaulting Lenders are re-allocated pursuant to this Section 21.19(c), then the issuance fees payable to the Lenders pursuant to Section 3.3 shall be adjusted to give effect to such re-allocations in accordance with each such Non-Defaulting Lender's Individual Commitment Amount, and if the Borrower provided cash collateral pursuant to clause (ii) above, the Borrower shall not be required to pay the Issuance Fee attributable to the cash collateralized exposure of such Letter of Credit.
(d) So long as any Lender is a Defaulting Lender, no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, and no Swingline Lender shall be required to make any Swingline Advance, unless such Issuing Lender or Swing Line Swingline Lender, as applicable, is satisfied that the related exposure will be 100% covered by the Individual Commitment Amounts of the Non-Defaulting Lenders and/or cash collateralized in accordance with Section 21.19(c), and participating interests in any such newly issued or increased Letter of Credit or Swingline Advance shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 21.19(b) or 21.19(c)(i) as applicable (and Defaulting Lenders shall not participate therein).
(e) If any Lender shall cease to be a Defaulting Lender, then, upon becoming aware of such change, the Agent shall notify the Non-Defaulting Lenders and (in accordance with the written direction of the Agent) such Lender (which has ceased to be a Defaulting Lender) shall purchase, and the Non-Defaulting Lenders shall on a rateable basis sell and assign to such Lender, portions of such Obligations equal in total to such Lender's Individual Commitment Amount thereof without regard to this Section 21.19.
Appears in 1 contract
Funding Where there is a Defaulting Lender. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(i) the standby fees payable pursuant to Section 3.4 shall cease to accrue on the unused portion of the Individual Commitment Amount of such Defaulting Lender if and for so long as such Lender is a Defaulting Lender;
(ii) a Defaulting Lender shall not be included in determining whether, and the Individual Commitment Amount and the Lender's proportion of the Aggregate Principal Amount of such Defaulting Lender shall be excluded in determining whether, all Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 21.16); provided that any waiver, amendment or modification that (A) applies to such Defaulting Lender in a manner that differs in any material respect from its application to other affected Lenders, (B) increases the Individual Commitment Amount of such Defaulting Lender, (C) extends any Maturity Date applicable to such Defaulting Lender, (D) decreases the applicable pricing margin or standby fees applicable to such Defaulting Lender or (E) postpones, reduces or waives any principal payment due to such Defaulting Lender hereunder shall in each case require the consent of such Defaulting Lender; and
(iii) for certainty, the Borrower shall retain and reserve its other rights and remedies respecting each Defaulting Lender; provided that the Agent shall only be required to give effect to (i) and (ii) above if the Agent has actual knowledge that a Lender is a Defaulting Lender. If the Agent acquires actual knowledge that a Lender is a Defaulting Lender, then the Agent shall promptly notify the Borrower that such Lender is a Defaulting Lender (and such Lender shall be deemed to have consented to such disclosure); provided that the Agent shall have no duty to inquire as to whether a Lender is a Defaulting Lender.
(b) If the Agent has actual knowledge that a Lender is a Defaulting Lender at the time that the Agent receives a Notice of Drawdown that relates to a Letter of Credit or that either relates to a conversion of a Swingline Advance into a Syndicated Borrowing or will result in a currency conversion, then each Non-Defaulting Lender shall fund its Lender's proportion of such affected Obligations (and, in calculating such Lender's proportion, the applicable Individual Commitment Amount of each such Defaulting Lender shall be ignored); provided that such re- allocation may only be effected if and to the extent that (i) such re-allocation would not cause any Non-Defaulting Lender's proportion of the Aggregate Principal Amount to exceed its Individual Commitment Amount and (ii) the conditions precedent in Section 6.2 are satisfied at such time. Each Defaulting Lender agrees to indemnify each Non-Defaulting Lender for any amounts paid by such Non-Defaulting Lender under this Section 21.19 and which would otherwise have been paid by the Defaulting Lender if its Individual Commitment Amount had been included in determining the Lender's Rateable Portion of such affected Advances.[Intentionally Deleted]
(c) If any Letter of Credit is outstanding at the time that a Lender becomes a Defaulting Lender, then:
(i) all or any part of such Defaulting Lender's Rateable Portion of such Letter of Credit shall be re-allocated among the Non-Defaulting Lenders in accordance with their respective Individual Commitment Amounts; provided that such re-allocation may only be effected if and to the extent that (A) such re-allocation would not cause any Non-Defaulting Lender's proportion of the Aggregate Principal Amount to exceed its Individual Commitment Amount and (B) the conditions precedent in Sections 6.2 and 6.3 are satisfied at such time;
(ii) if the re-allocation described in clause (i) above cannot be effected, or can only partially be effected, then such Defaulting Lender shall, within one Banking Day following notice by the Agent, provide cash collateral for such Defaulting Lender's Individual Commitment Amount of such Letter of Credit (after giving effect to any partial re-allocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 21.18 for so long as such Letter of Credit is outstanding, and if such Defaulting Lender shall fail to provide such cash collateral, then, at the request of the applicable Issuing Lender, the Borrower shall provide such cash collateral to the Agent; and
(iii) if the Individual Commitment Amounts of the Non-Defaulting Lenders are re-allocated pursuant to this Section 21.19(c), then the issuance fees payable to the Lenders pursuant to Section 3.3 shall be adjusted to give effect to such re-allocations in accordance with each such Non-Defaulting Lender's Individual Commitment Amount, and if the Borrower provided cash collateral pursuant to clause (ii) above, the Borrower shall not be required to pay the Issuance Fee attributable to the cash collateralized exposure of such Letter of Credit.[Intentionally Deleted]
(d) So long as any Lender is a Defaulting Lender, no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, and no Swingline Lender shall be required to make any Swingline Advance, unless such Issuing Lender or Swing Line Lender, as applicable, is satisfied that the related exposure will be 100% covered by the Individual Commitment Amounts of the Non-Defaulting Lenders and/or cash collateralized in accordance with Section 21.19(c), and participating interests in any such newly issued or increased Letter of Credit or Swingline Advance shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 21.19(b) or 21.19(c)(i) as applicable (and Defaulting Lenders shall not participate therein).[Intentionally Deleted]
(e) If any Lender shall cease to be a Defaulting Lender, then, upon becoming aware of such change, the Agent shall notify the Non-Defaulting Lenders and (in accordance with the written direction of the Agent) such Lender (which has ceased to be a Defaulting Lender) shall purchase, and the Non-Defaulting Lenders shall on a rateable basis sell and assign to such Lender, portions of such Obligations equal in total to such Lender's Individual Commitment Amount thereof without regard to this Section 21.19.
Appears in 1 contract
