Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a), Section 2.2, or Section 2.11 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash. (b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Credit Exposure being less than its pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure. Further, if at any time prior to the acceleration or maturity of the Advances, the Administrative Agent shall receive any payment in respect of principal attributable to an applicable Advance or Letter of Credit Obligations while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share of all Advances then outstanding. After acceleration or maturity of the Advances, subject to the first sentence of this Section 2.14(b), all principal will be paid ratably as provided in Section 2.11(e). (c) If any Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender then: (i) such Letter of Credit Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender; (ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h) for so long as such Letter of Credit Exposure is outstanding; (iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized; (iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share; (v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
Appears in 4 contracts
Samples: Commitment Increase Agreement and Second Amendment (Hi-Crush Partners LP), Credit Agreement (Hi-Crush Partners LP), Credit Agreement (Hi-Crush Partners LP)
Payments and Deductions to a Defaulting Lender. (a) If The Borrower shall have the right, to the extent permitted by applicable law, to setoff any amounts owed to it by any Defaulting Lender in respect of deposit liabilities and liabilities under Swap Agreements against amounts due by the Borrower to such Defaulting Lender under this Agreement, provided that the amount of such set-off shall not exceed the amount of such Defaulting Lender’s Revolving Credit Exposures and interest. Further, if any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(a), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have has been equalized in accordance with each Lender’s of the Lenders respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.03(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) If any Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) such Letter of Credit Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
Appears in 4 contracts
Samples: Credit Agreement (Goodrich Petroleum Corp), Credit Agreement (Goodrich Petroleum Corp), Credit Agreement (Goodrich Petroleum Corp)
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(a), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as such Defaulting Lender shall have complied with Section 4.03(c) and all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.03(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included 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 12.02(b)); provided that (i) any waiver, amendment or modification requiring the consent of all Lenders pursuant to Section 12.02(b) (other than Section 12.02(b)(vii)) or requiring the consent of each affected Lender pursuant to Section 12.02(b)(i), (iii), (iv) or (v) shall require the consent of such Defaulting Lender (which for the avoidance of doubt would include any change to the Maturity Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default or Borrowing Base Deficiency interest rates) and any increase in such Defaulting Lender’s Commitment) and (ii) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e. the Applicable Percentage of the Borrowing Base) of a Defaulting Lender may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share Applicable Percentages (for the purposes of such reallocation the Defaulting Lender’s Pro Rata Share of Commitment shall be disregarded in determining the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit ExposureNon-Defaulting Lender’s Applicable Percentage) but only to the extent that (A1) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments, (2) the conditions set forth in Section 6.02 are satisfied at such time and (3) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances Credit Exposure plus its reallocated share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one Business Day following notice by the Administrative Agent, Agent cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h2.08(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.03 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.03(c), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;Applicable Percentages; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.03(c)(iii), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(d) So long as any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.03(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.08(d) (and Defaulting Lenders shall not participate therein).
(e) In the event that the Administrative Agent, the Borrower and the Issuing Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date date, if necessary, such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances or participations in Letters of Credit Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure Loans in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the BorrowerApplicable Percentage.
Appears in 3 contracts
Samples: Credit Agreement (APEG Energy II, LP), Credit Agreement (Diamondback Energy, Inc.), Credit Agreement (Us Energy Corp)
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(b), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.05(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitment, the Maximum Credit Amount, the outstanding principal balance of the Loans and participation interests in Letters of Credit of such Defaulting Lender shall not be included 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 12.02), provided that any waiver, amendment or modification requiring (A) the consent of all Lenders or (B) the consent of each affected Lender and which affects such Defaulting Lender, shall require the consent of such Defaulting Lender; and provided further that any redetermination or affirmation of the Oil and Gas Borrowing Base shall occur without participation of a Defaulting Lender, but the Commitments (i.e., the Applicable Percentage of the Borrowing Base of a Defaulting Lender) may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) Applicable Percentages but only to the extent that (A1) the sum of each all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, LC Exposure does not exceed such the total of all Non-Defaulting Lender’s Commitment, Lenders’ Commitments and (B2) the conditions set forth in Section 3.2 6.02 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h2.08(e) for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.05 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.05(c), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;Applicable Percentages; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.05(c)(iii), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(d) So long as any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.05(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.08(d) (and Defaulting Lenders shall not participate therein).
(e) In the event that the Administrative Agent, the Borrower and the Issuing Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances Loans or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure Loans in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the BorrowerApplicable Percentage.
Appears in 2 contracts
Samples: Senior Revolving Credit Agreement (Petrohawk Energy Corp), Senior Revolving Credit Agreement (Petrohawk Energy Corp)
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(b), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.05(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitment, the Maximum Credit Amount, the outstanding principal balance of the Loans and participation interests in Letters of Credit of such Defaulting Lender shall not be included 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 12.02), provided that any waiver, amendment or modification requiring the consent of each affected Lender and which affects such Defaulting Lender, shall require the consent of such Defaulting Lender; and provided further that any redetermination or affirmation of the Borrowing Base shall occur without participation of a Defaulting Lender, but the Commitments (i.e., the Applicable Percentage of the Borrowing Base of a Defaulting Lender) may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) Applicable Percentages but only to the extent that (A1) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments, (2) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances Credit Exposure plus its reallocated share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment, and (B3) the conditions set forth in Section 3.2 6.02 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h2.08(e) for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.05 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.05(c), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;Applicable Percentages; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.05(c)(iii), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(d) So long as any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.05(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.08(d) (and Defaulting Lenders shall not participate therein).
(e) In the event that the Administrative Agent, the Borrower and the Issuing Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances Loans or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure Loans in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the BorrowerApplicable Percentage.
Appears in 2 contracts
Samples: Senior Revolving Credit Agreement (Halcon Resources Corp), Senior Revolving Credit Agreement (Halcon Resources Corp)
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.02(a), Section 2.22.04(a), or Section 2.11 4.02, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureExposures. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to an applicable Advance or Letter of Credit Obligations a Loan while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.04(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) If any Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) such Letter of Credit Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
Appears in 2 contracts
Samples: Senior Secured Credit Agreement (Phoenix Capital Group Holdings, LLC), Senior Secured Credit Agreement (Phoenix Capital Group Holdings, LLC)
Payments and Deductions to a Defaulting Lender. (a) If any Revolving Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a), Section 2.2, or Section 2.11 becomes a Defaulting Lender then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Revolving Lender to satisfy such Revolving Lender’s unsatisfied obligations under such Sections hereunder until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Revolving Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposurePercentage Share, then no payments will be made to such Defaulting Lender until such time as such Defaulting Lender shall have complied with Section 4.08(c) and all amounts due and owing to the Lenders have been equalized in accordance with each Revolving Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Revolving Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Revolving Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such revolving Borrowing(s) are paid in full or each Revolving Lender (including each Defaulting Lender) is owed its pro rata share Percentage Share of all Advances Revolving Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.08(b), all principal will be paid ratably as provided in Section 2.11(e10.02(d).
(c) 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:
(i) Fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.04.
(ii) The Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included 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 12.04); provided that (A) any waiver, amendment or modification requiring the consent of all Lenders pursuant to Section 12.04 or requiring the consent of each affected Lender with respect to any change to the Termination Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default or Deficiency interest rates) and any increase in such Defaulting Lender’s Revolving Commitment, shall require the consent of such Defaulting Lender and (B) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Revolving Commitment (i.e., the Percentage Share of the Borrowing Base) of a Defaulting Lender may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure or Swingline Exposure exists at the time a Revolving Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure or Swingline Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share Percentage Shares (for the purposes of such reallocation the Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and Revolving Commitment shall be disregarded in determining each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit ExposureNon-Defaulting Lender’s Percentage Share) but only to the extent that (AI) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure and Swingline Exposure does not exceed the total of all Non-Defaulting Lenders’ Revolving Commitments, (II) the conditions set forth in Section 6.02 are satisfied at such time and (III) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances Credit Exposure plus its reallocated share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, such Defaulting Lender’s LC Exposure and Swingline Exposure does not exceed such Non-Defaulting Lender’s Revolving Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one three (3) Business Day Days following notice by the Administrative Agent, Agent cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure and Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h2.10(b) for so long as such Letter of Credit LC Exposure or Swingline Exposure is outstanding, or if such Defaulting Lender becomes a Non-Defaulting Lender or is replaced, until such LC Exposure and Swingline Exposure is allocated to such Revolving Lender or replacement Revolving Lender, as applicable;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.08 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii2.04(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.08(c)(iii)(A), then the fees payable to the Lenders pursuant to Section 2.6(b)(i2.04(a) and (iiiSection 2.04(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Percentage Share;; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.08(c)(iii), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii2.04(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(d) So long as any Revolving Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, and the Swingline Lender shall not be required to make any Swingline Loan, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower (in any combination thereof) in accordance with Section 4.08(c), and participating interests in any such newly issued or increased Letter of Credit or such Swingline Loan shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 4.08(c)(i) (and Defaulting Lenders shall not participate therein).
(e) In the event that the Administrative Agent, the Borrower Borrower, the Issuing Bank and the Issuing Swingline Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit LC Exposure and Swingline Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Revolving Lender’s Revolving Commitment and on such date date, if necessary such Revolving Lender shall be deemed to have purchased purchase at par such of the Revolving Advances or participations in Letters of Credit Loans of the other Revolving Lenders as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Revolving Advances and Letter of Credit Exposure Loans in accordance with its Pro Rata Percentage Share, and (ii) if no Default exists, then any such cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Black Stone Minerals, L.P.), Credit Agreement (Black Stone Minerals, L.P.)
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a), Section 2.2, or Section 2.11 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Revolving Pro Rata Share of Letter of Credit Exposure which results in its outstanding applicable Advances and Revolving Pro Rata Share of Letter of Credit Exposure being less than its pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure. Further, if at any time prior to the acceleration or maturity of the Advances, the Administrative Agent shall receive any payment in respect of principal attributable to an applicable Advance or Letter of Credit Obligations while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share of all Advances then outstanding. After acceleration or maturity of the Advances, subject to the first sentence of this Section 2.14(b), all principal will be paid ratably as provided in Section 2.11(e).
(c) If any Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) such Letter of Credit Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Revolving Pro Rata Share of such Defaulting Lender’s Revolving Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed the lesser of such Non-Defaulting Lender’s Revolving Pro Rata Share of such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Revolving Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
Appears in 2 contracts
Samples: Master Assignment, Agreement, Amendment No. 1 and Waiver to Credit Agreement and Related Documents (Heckmann Corp), Credit Agreement (Heckmann Corp)
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(b), Section 2.22.09(d), Section 2.09(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.05(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitment, the Maximum Credit Amount, the outstanding principal balance of the Loans and participation interests in Letters of Credit of such Defaulting Lender shall not be included 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 12.02), provided that any waiver, amendment or modification requiring the consent of each affected Lender and which affects such Defaulting Lender, shall require the consent of such Defaulting Lender; and provided further that any redetermination or affirmation of the Borrowing Base shall occur without participation of a Defaulting Lender, but the Commitments (i.e., the Applicable Percentage of the Borrowing Base of a Defaulting Lender) may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) Applicable Percentages but only to the extent that (A1) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments, (2) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances Credit Exposure plus its reallocated share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment, and (B3) the conditions set forth in Section 3.2 6.02 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, within one (1) Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h2.09(e) for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.05 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.05, then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;Applicable Percentages; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.05(c)(iii), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(d) So long as any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.05, and participating interests in any such newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.09(d) (and Defaulting Lenders shall not participate therein).
(e) If (i) a Bankruptcy Event or a Bail-In Action with respect to a Lender Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) the Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Issuing Bank shall not be required to issue, extend, renew or increase any Letter of Credit, unless the Issuing Bank shall have entered into arrangements with the Borrower or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder.
(f) In the event that the Administrative Agent, the Borrower and the Issuing Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances Loans or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure Loans in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the BorrowerApplicable Percentage.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Halcon Resources Corp)
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(a), Section 2.22.05(b), Section 2.09(d), Section 2.09(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.04(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitment, the Maximum Credit Amount, the outstanding principal balance of the Loans and participation interests in Letters of Credit of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.02), provided that (except as expressly set forth in Section 12.02 and in the next proviso) any waiver, amendment or modification requiring the consent of each affected Lender and which affects such Defaulting Lender, shall require the consent of such Defaulting Lender; and provided further that any redetermination or affirmation of the Borrowing Base shall occur without participation of a Defaulting Lender, but the Commitments (i.e., the Applicable Percentage of the Borrowing Base of a Defaulting Lender) may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) Applicable Percentages but only to the extent that (A1) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments, (2) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances Credit Exposure plus its reallocated share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment, and (B3) the conditions set forth in Section 3.2 6.02 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, within one (1) Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h2.09(e) for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.04 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) abovethis Section 4.04, then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;Applicable Percentages; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsthis Section 4.04(c)(iii), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. In the event that .
(iv) any payment of principal, interest, fees or other amounts received by the Administrative AgentAgent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 10.02(c) or otherwise) or received by the Borrower and the Issuing Lender each agrees that Administrative Agent from a Defaulting Lender has adequately remedied all matters that caused pursuant to Section 12.08 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 Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank hereunder; third, to cash collateralize the Issuing Banks’ LC Exposure with respect to such Defaulting Lender in accordance with this Section; fourth, as the Borrower may request, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a Defaulting Lender, then deposit account and released pro rata in order to (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of satisfy such Defaulting Lender’s Commitment potential future funding obligations with respect to Loans under this Agreement and on (ii) cash collateralize the Issuing Banks’ future LC Exposure with respect to such date such Defaulting Lender shall be deemed with respect to have purchased at par such of the Revolving Advances or participations in future Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure issued under this Agreement, in accordance with this Section 4.04; sixth, to the payment of any amounts owing to the Lenders or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Issuing Banks against such Defaulting Lender as a result of such Defaulting Lender’s breach of its Pro Rata Shareobligations under this Agreement or under any other Loan Document; seventh, so long as no Event of Default is continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement or under any other Loan Document; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (i) such payment is a payment of the principal amount of any Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (ii) if no Default existssuch Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 6.02 were satisfied or waived, then such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure are held by the Lenders pro rata in accordance with the Commitments without giving effect to Section 4.04(c)(iii). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender this Section 4.04 shall be returned deemed paid to the Borrowerand redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Halcon Resources Corp)
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(a), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as such Defaulting Lender shall have complied with Section 4.03(c) and all amounts due and owing to the Lenders have has been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.03(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05(a) and the Borrower shall not be obligated to pay the Administrative Agent any Defaulting Lender’s ratable share of the fees described in Section 3.05(a) and (b).
(ii) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included 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 12.02(b)); provided that (i) any waiver, amendment or modification requiring the consent of all Lenders pursuant to Section 12.02(b) (other than Section 12.02(b)(vii) or requiring the consent of each affected Lender pursuant to Section 12.02(b)(i), (iii), (iv) or (v) shall require the consent of such Defaulting Lender (which for the avoidance of doubt would include any change to the Maturity Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default or Borrowing Base Deficiency interest rates) and any increase in such Defaulting Lender’s Commitment) and (ii) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e. the Applicable Percentage of the Borrowing Base) of a Defaulting Lender may not be increased without the consent of such Defaulting Lender;
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share Applicable Percentages (for the purposes of such reallocation the Defaulting Lender’s Pro Rata Share of Commitment shall be disregarded in determining the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit ExposureNon-Defaulting Lender’s Applicable Percentage) but only to the extent that (Ax) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments, (y) the conditions set forth in Section 6.02 are satisfied at such time and (z) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances Credit Exposure plus its reallocated share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one Business Day following notice by the Administrative Agent, Agent cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h) 10.02 for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.03 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.03(c), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;Applicable Percentages; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.03(c)(iii), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(d) So long as any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.03(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.08(d) (and Defaulting Lenders shall not participate therein).
(e) In the event that the Administrative Agent, the Borrower and the Issuing Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date date, if necessary as a result of a Loan funding pursuant to Section 2.08(e), such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances or participations in Letters of Credit Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure Loans in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the BorrowerApplicable Percentage.
Appears in 1 contract
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(a), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have has been equalized in accordance with each Lender’s of the Lenders respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.03(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) If Notwithstanding any Letter provision of Credit 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) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05(a).
(ii) the Commitment of such Defaulting Lender shall not be included in determining whether all Lenders or the Majority Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.02), provided that any waiver, amendment or modification requiring the consent of each affected Lender shall require the consent of such Defaulting Lender; and provided further that any redetermination or affirmation of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e. the Applicable Percentage of the Borrowing Base of a Defaulting Lender) may not be increased without the consent of such Defaulting Lender.
(iii) if any LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) Applicable Percentages but only to the extent that (Ax) the sum of each Nonall non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, LC Exposure does not exceed such Nonthe total of all non-Defaulting Lender’s Commitment, Lenders’ Commitments and (By) the conditions set forth in Section 3.2 6.02 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one Business Day following notice by the Administrative Agent, Agent cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h) 10.02 for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.03(c) then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.03(c)(ii), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Pro Rata Share;Applicable Percentages; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.03(c)(ii), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
Appears in 1 contract
Payments and Deductions to a Defaulting Lender. (a) If The Borrower shall have the right, to the extent permitted by applicable law, to setoff any amounts owed to it by any Defaulting Lender in respect of deposit liabilities and liabilities under Swap Agreements against amounts due by the Borrower to such Defaulting Lender under this Agreement, provided that the amount of such set-off shall not exceed the amount of such Defaulting Lender’s Credit Exposures and interest. Further, if any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(a), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.03(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) If any Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) such Letter of Credit Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
Appears in 1 contract
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(a), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as such Defaulting Lender shall have complied with Section 4.03(c) and all amounts due and owing to the Lenders have has been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.03(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitment of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.02), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender shall require the consent of such Defaulting Lender; and provided further that any redetermination or affirmation of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e. the Applicable Percentage of the Borrowing Base of a Defaulting Lender) may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share Applicable Percentages (for the purposes of such reallocation the Defaulting Lender’s Pro Rata Share of Commitment shall be disregarded in determining the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit ExposureNon-Defaulting Lender’s Applicable Percentage) but only to the extent that (Ax) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments, (y) the conditions set forth in Section 6.02 are satisfied at such time and (z) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances Credit Exposure plus its reallocated share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one Business Day following notice by the Administrative Agent, Agent cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h) 10.02 for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.03 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.03(c), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;Applicable Percentages; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.03(c)(iii), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(d) So long as any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.03(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.08(d) (and Defaulting Lenders shall not participate therein).
(e) In the event that the Administrative Agent, the Borrower and the Issuing Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date date, if necessary as a result of a Loan funding pursuant to Section 2.08(e), such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances or participations in Letters of Credit Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure Loans in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the BorrowerApplicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Cimarex Energy Co)
Payments and Deductions to a Defaulting Lender. 52
(a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.01(a), Section 2.22.07(d), or Section 2.11 2.10(d) then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s 's obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share pro rata share of Letter of Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share share of Letter of Credit Exposure being less than its pro rata share Pro Rata Share of the aggregate outstanding applicable Advances and Letter of Credit Exposure, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s 's respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure. Further, if at any time prior to the acceleration or maturity of the Advances, the Administrative Agent shall receive any payment in respect of principal attributable to of an applicable Advance or Letter of Credit Obligations a Reimbursement Obligation while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Pro Rata Share of all Advances then outstanding. After acceleration or maturity of the Advances, subject to the first sentence of this Section 2.14(b2.17(b), all principal will be paid ratably as provided in Section 2.11(e)2.11.
(c) If any Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) such Letter of Credit Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share 's share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s 's outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed such Non-Defaulting Lender’s 's Commitment, and (B) the conditions set forth in Section 3.2 3.02 are satisfied at such time; provided that, subject to Section 9.24, such reallocation shall will not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the any Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s 's share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h2.07(g) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s 's Letter of Credit Exposure pursuant to this Section 2.14 2.17 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or 2.08 (iiib) with respect to such Defaulting Lender’s 's Letter of Credit Exposure during the period such Defaulting Lender’s 's Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii2.08(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ ' Pro Rata Share;
(v) if any Defaulting Lender’s 's share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the any Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii2.08(b) with respect to such Defaulting Lender’s 's share of the Letter of Credit Exposure shall be payable to the applicable Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. .
(d) In the event that the Administrative Agent, the Borrower and the Issuing Lender Lenders each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s 's Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
Appears in 1 contract
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(a), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as such Defaulting Lender shall have complied with Section 4.03(c) and all amounts due and owing to the Lenders have has been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.03(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitment, the Maximum Credit Amount, the outstanding principal balance of the Loans and participation interests in Letters of Credit of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.02), provided that any waiver, amendment or modification requiring the consent of each affected Lender shall require the consent of such Defaulting Lender if it is an affected Lender; and provided further that any redetermination or affirmation of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e. the Applicable Percentage of the Borrowing Base of a Defaulting Lender) may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) Applicable Percentages but only to the extent that (Ax) the sum of each all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, LC Exposure does not exceed such Nonthe total of all non-Defaulting Lender’s Commitment, Lenders’ Commitments and (By) the conditions set forth in Section 3.2 6.02 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one three (3) Business Day Days following notice by the Administrative Agent, Agent cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h) 10.02 for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.03 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.03(c)(iii), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Pro Rata Share;Applicable Percentages; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.03(c), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(d) So long as any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.03(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.08(d) (and Defaulting Lenders shall not participate therein).
(e) In the event that the Administrative Agent, the Borrower and the Issuing Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date date, if necessary as a result of a Loan funding pursuant to Section 2.08(e), such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances or participations in Letters of Credit Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure Loans in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the BorrowerApplicable Percentage.
Appears in 1 contract
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(b), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.05(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitment, the Maximum Credit Amount, the outstanding principal balance of the Loans and participation interests in Letters of Credit of such Defaulting Lender shall not be included 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 12.02), provided that any waiver, amendment or modification requiring the consent of each affected Lender and which affects such Defaulting Lender, shall require the consent of such Defaulting Lender; and provided further that any redetermination or affirmation of the Oil and Gas Borrowing Base shall occur without participation of a Defaulting Lender, but the Commitments (i.e., the Applicable Percentage of the Borrowing Base of a Defaulting Lender) may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) Applicable Percentages but only to the extent that (A1) the sum of each all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, LC Exposure does not exceed such the total of all Non-Defaulting Lender’s Commitment, Lenders’ Commitments and (B2) the conditions set forth in Section 3.2 6.02 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h2.08(e) for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.05 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.05(c), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;Applicable Percentages; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.05(c)(iii), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(d) So long as any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.05(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.08(d) (and Defaulting Lenders shall not participate therein).
(e) In the event that the Administrative Agent, the Borrower and the Issuing Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances Loans or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure Loans in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the BorrowerApplicable Percentage.
Appears in 1 contract
Samples: Senior Revolving Credit Agreement (Petrohawk Energy Corp)
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(a), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have has been equalized in accordance with each Lender’s of the Lenders respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.03(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) If Notwithstanding any Letter provision of Credit 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) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05(a).
(ii) the Commitment of such Defaulting Lender shall not be included in determining whether all Lenders or the Majority Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.02), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender shall require the consent of such Defaulting Lender; and provided further that any redetermination or affirmation of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e. the Applicable Percentage of the Borrowing Base of a Defaulting Lender) may not be increased without the consent of such Defaulting Lender.
(iii) if any LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Nonnon-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) Applicable Percentages but only to the extent that (Ax) the sum of each Nonall non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, LC Exposure does not exceed such Nonthe total of all non-Defaulting Lender’s Commitment, Lenders’ Commitments and (By) the conditions set forth in Section 3.2 6.02 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one Business Day following notice by the Administrative Agent, Agent cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h) 10.02 for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.03(c) then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.03(c)(ii), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Pro Rata Share;Applicable Percentages; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.03(c)(ii), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
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Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a), Section 2.2, or Section 2.11 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as such Defaulting Lender shall have complied with Section 4.04(b) and all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureSecured Obligations. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.04(a), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(cb) If Notwithstanding any Letter provision of Credit Exposure exists at this Agreement to the time a contrary, if any Lender becomes a Defaulting Lender then:
(i) such Letter of Credit Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h) provisions shall apply for so long as such Letter of Credit Exposure Lender is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.:
Appears in 1 contract
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(a), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as such Defaulting Lender shall have complied with Section 4.03(c) and all amounts due and owing to the Lenders have has been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.03(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitment, the Maximum Credit Amount, the outstanding principal balance of the Loans and participation interests in Letters of Credit of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.02), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender shall require the consent of such Defaulting Lender; and provided further that any redetermination or affirmation of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e. the Applicable Percentage of the Borrowing Base of a Defaulting Lender) may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) Applicable Percentages but only to the extent that (Ax) the sum of each all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, LC Exposure does not exceed such Nonthe total of all non-Defaulting Lender’s Commitment, Lenders’ Commitments and (By) the conditions set forth in Section 3.2 6.02 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one three (3) Business Day Days following notice by the Administrative Agent, Agent cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h) 10.02 for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.03 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.03(c)(iii), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Pro Rata Share;Applicable Percentages; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.03(c), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(d) So long as any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.03(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.08(d) (and Defaulting Lenders shall not participate therein).
(e) In the event that the Administrative Agent, the Borrower and the Issuing Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date date, if necessary as a result of a Loan funding pursuant to Section 2.08(e), such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances or participations in Letters of Credit Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure Loans in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the BorrowerApplicable Percentage.
Appears in 1 contract
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a), Section 2.2, or Section 2.11 becomes a Defaulting Lender then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposurePercentage Share, then no payments will be made to such Defaulting Lender until such time as such Defaulting Lender shall have complied with Section 4.08(c) and all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Percentage Share of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.08(b), all principal will be paid ratably as provided in Section 2.11(e10.02(d).
(c) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.04.
(ii) The Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included 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 12.04); provided that
(A) any waiver, amendment or modification requiring the consent of all Lenders pursuant to Section 12.04 or requiring the consent of each affected Lender with respect to any change to the Termination Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default or Borrowing Base Deficiency interest rates) and any increase in such Defaulting Lender’s Commitment, shall require the consent of such Defaulting Lender and (B) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e., the Percentage Share of the Borrowing Base) of a Defaulting Lender may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share Percentage Shares (for the purposes of such reallocation the Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and Commitment shall be disregarded in determining each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit ExposureNon-Defaulting Lender’s Percentage Share) but only to the extent that (AI) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments, (II) the conditions set forth in Section 6.02 are satisfied at such time and (III) the sum of each Non-Non- Defaulting Lender’s outstanding Revolving Advances Credit Exposure plus its reallocated share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.three
Appears in 1 contract
Samples: Credit Agreement
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a), Section 2.2, or Section 2.11 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the -47- account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Credit Exposure being less than its pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure. Further, if at any time prior to the acceleration or maturity of the Advances, the Administrative Agent shall receive any payment in respect of principal attributable to an applicable Advance or Letter of Credit Obligations while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share of all Advances then outstanding. After acceleration or maturity of the Advances, subject to the first sentence of this Section 2.14(b), all principal will be paid ratably as provided in Section 2.11(e).
(c) If any Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) such Letter of Credit Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
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Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(b), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.04(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitment, the Maximum Credit Amount, the outstanding principal balance of the Loans and participation interests in Letters of Credit of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders or the Super-Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.02), provided that any waiver, amendment or modification requiring (A) the consent of all Lenders or (B) the consent of each affected Lender and which affects such Defaulting Lender, shall require the consent of such Defaulting Lender; Houston 3931255v.7 and provided further that any redetermination or affirmation of the Borrowing Base shall occur without participation of a Defaulting Lender, but the Commitments (i.e., the Applicable Percentage of the Borrowing Base of a Defaulting Lender) may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) Applicable Percentages but only to the extent that (A1) the sum of each all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, LC Exposure does not exceed such the total of all Non-Defaulting Lender’s Commitment, Lenders’ Commitments and (B2) the conditions set forth in Section 3.2 6.02 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one Business Day following notice by the Administrative Agent, Agent cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h2.08(e) for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.04 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.04(c), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;Applicable Percentages; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.04(c)(iii), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(d) So long as any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.04(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among Non Houston 3931255v.7 Defaulting Lenders in a manner consistent with Section 2.08(d) (and Defaulting Lenders shall not participate therein).
(e) In the event that the Administrative Agent, the Borrower and the Issuing Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances Loans or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure Loans in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the BorrowerApplicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Linn Energy, LLC)
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a), Section 2.22.3, or Section 2.11 2.12 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Credit Exposure being less than its pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure. Further, if at any time prior to the acceleration or maturity of the Advances, the Administrative Agent shall receive any payment in respect of principal attributable to an applicable Advance or Letter of Credit Obligations while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share of all Advances then outstanding. After acceleration or maturity of the Advances, subject to the first sentence of this Section 2.14(b2.15(b), all principal will be paid ratably as provided in Section 2.11(e2.12(e).
(c) If any Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) such Letter of Credit Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed the lesser of such Non-Defaulting Lender’s Pro Rata Share of the Borrowing Base and such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h2.3(h) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 2.15 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i2.7(b)(i) or (iii) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i2.7(b)(i) and (iii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i2.7(b)(i) and (iii) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
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Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(a), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as such Defaulting Lender shall have complied with Section 4.03(c) and all amounts due and owing to the Lenders have has been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureObligations. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to Index this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.03(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitment, the Maximum Credit Amount and the outstanding principal balance of the Loans of, and the participation interests in Letters of Credit held by, such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.02); provided that any waiver, amendment or modification requiring the consent of each affected Lender shall require the consent of such Defaulting Lender if it is an affected Lender; and provided further that no Defaulting Lender shall participate in any redetermination or affirmation of the Borrowing Base, but the Commitment of any Defaulting Lender (i.e. such Defaulting Lender’s Applicable Percentage of the Borrowing Base) may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender Lender, then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) Applicable Percentages but only to the extent that (Ax) the sum of each all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, LC Exposure does not exceed such Nonthe total of all non-Defaulting Lender’s Commitment, Lenders’ Commitments and (By) the conditions set forth in Section 3.2 are satisfied no Default or Event of Default has occurred and is continuing at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, within one three (3) Business Day Days following the Borrower’s receipt of written notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h2.08(j) for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.03, then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to Index such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to clause (iA) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Pro Rata Share;Applicable Percentages after giving effect to such reallocation; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.03(c), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(d) So long as any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the Defaulting Lender’s LC Exposure will be 100% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.03(c)(iii)(B), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 4.03(c)(iii)(A) (and Defaulting Lenders shall not participate therein).
(e) In the event that the Administrative Agent, the Borrower and the Issuing Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure LC Exposures of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date date, if necessary as a result of a Loan funding pursuant to Section 2.08(e), such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances or participations in Letters of Credit Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure Loans in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the BorrowerApplicable Percentage.
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Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a)2.01, Section 2.22.07, or Section 2.11 2.10 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Revolving Advances or Pro Rata Share pro rata share of Letter of Credit Exposure and Swing Line Advances which results in its outstanding applicable Revolving Advances and Pro Rata Share share of Letter of Credit Exposure and Swing Line Advances being less than its pro rata share Pro Rata Share of the aggregate outstanding applicable Advances and Letter of Credit Exposure, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure. Further, if at any time prior to the acceleration or maturity of the Revolving Advances, the Administrative Agent shall receive any payment in respect of principal attributable to an applicable of a Revolving Advance or Letter of Credit Obligations a Reimbursement Obligation while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Pro Rata Share of all Advances then outstanding. After acceleration or maturity of the Revolving Advances, subject to the first sentence of this Section 2.14(b2.17(b), all principal will be paid ratably as provided in Section 2.11(e)2.11.
(c) If any Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) such Letter of Credit Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit ExposureExposure and Swing Line Advances, after giving effect to the reallocation provided herein, does not exceed the lesser of such Non-Defaulting Lender’s Pro Rata Share of the Borrowing Base and such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 3.02 are satisfied at such time; provided that, such reallocation shall will not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h2.07(g) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 2.17 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii2.08(b) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii2.08(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;; and
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii2.08(b) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
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Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a), Section 2.2, or Section 2.11 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as such Defaulting Lender shall have complied with Section 4.04(b) and all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureSecured Obligations. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.04(a), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(cb) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitments, the Maximum Credit Amount and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Lenders, Super Majority Lenders, the Majority Lenders or the Required Lenders, as applicable, have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.02); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender and which affects such Defaulting Lender, shall require the consent of such Defaulting Lender; and provided further that no Defaulting Lender shall participate in any redetermination or affirmation of the Borrowing Base, but the Commitment of a Defaulting Lender may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of the LC Exposure of such Letter of Credit Exposure Defaulting Lender shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share Applicable Percentages (for the purposes of such reallocation, the Defaulting Lender’s Pro Rata Share of Commitment shall be disregarded in determining the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit ExposureNon-Defaulting Lender’s Applicable Percentage) but only to the extent that (A1) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments and (2) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances Credit Exposure plus its reallocated share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, subject to Section 12.19, no such reallocation shall not will constitute a waiver or release of any claim the Borrower, any other Credit Party, the Administrative Agent, the any Issuing Lender Bank or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one Business Day following notice by the Administrative Agent, Agent cash collateralize for the benefit of each Issuing Bank such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h2.08(e) for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.04 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) abovethis Section 4.04(b), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;Applicable Percentages after giving effect to such reallocation; and
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsthis Section 4.04(b)(iii), then, without prejudice to any rights or remedies of the any Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and all letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Banks (ratably) until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing .
(c) So long as any Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be is a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then (i) outstanding LC Exposure will be 100% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.04(b), and participating interests in any such newly issued or increased Letter of Credit Exposure of the shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 4.04(b)(iii)(A) (and Defaulting Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrowernot participate therein).
Appears in 1 contract
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a), Section 2.2, 2.05(b) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Credit Exposure Term Loans which results in the outstanding principal amount of its outstanding applicable Advances and Pro Rata Share of Letter of Credit Exposure Term Loans being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter principal amount of Credit Exposureall Term Loans, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter principal amount of Credit Exposureall Term Loans. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to an applicable Advance or Letter of Credit Obligations a Loan while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.05(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) If Notwithstanding any Letter provision of Credit Exposure exists at this Agreement to the time a contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender thenis a Defaulting Lender:
(i) such Letter of Credit Exposure Yield enhancement payments shall be automatically reallocated among cease to accrue on the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated unfunded portion of the Letter Commitment of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i3.05.
(ii) The Commitment and the outstanding principal balance of the Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Majority Lenders have taken or may take any action hereunder (iii) with respect including any consent to any amendment or waiver pursuant to Section 12.02), provided that any waiver, amendment or modification requiring the consent of each affected Lender and which affects such Defaulting Lender’s Letter , shall require the consent of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;.
(ivd) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, Agent (acting at the written direction of the Majority Lenders) and the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances or participations in Letters of Credit Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure Loans in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the BorrowerApplicable Percentage.
Appears in 1 contract
Samples: Junior Secured Debtor in Possession Credit Agreement (Halcon Resources Corp)
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment to the Administrative Agent, the Issuer or the Swing Line Lender required to be made by it pursuant to Section 2.1(a)the terms hereof, Section 2.2, or Section 2.11 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances Loans or Pro Rata Share pro rata share of Letter of Credit Exposure Outstandings which results in its outstanding applicable Advances Loans and Pro Rata Share share of Letter of Credit Exposure Outstandings being less than its pro rata share of the aggregate outstanding applicable Advances Loans and Letter of Credit ExposureOutstandings, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances Loans and Letter of Credit ExposureOutstandings. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to an applicable Advance of a Loan or Letter of Credit Obligations a Reimbursement Obligation while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings borrowings of Loans for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(sborrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.10(b), all principal will be paid ratably as provided in Section 2.11(e)4.8.
(c) If any Letter of Credit Exposure Outstandings exists at the time a Lender becomes a Defaulting Lender then:
(i) such Letter of Credit Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
Appears in 1 contract
Samples: First Lien Credit Agreement (Milagro Oil & Gas, Inc.)
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(a), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as such Defaulting Lender shall have complied with Section 4.03(c) and all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.03(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitment, the Maximum Credit Amount, the outstanding principal balance of the Loans and participation interests in Letters of Credit of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.02); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender shall require the consent of such Defaulting Lender; and provided further that any redetermination or affirmation of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e. the Applicable Percentage of the Borrowing Base of a Defaulting Lender) may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) Applicable Percentages but only to the extent that (Ax) the sum of each all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, LC Exposure does not exceed such Nonthe total of all non-Defaulting Lender’s Commitment, Lenders’ Commitments and (By) the conditions set forth in Section 3.2 6.02 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one three (3) Business Day Days following notice by the Administrative Agent, Agent cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h) 10.02 for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.03 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.03(c)(iii), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Pro Rata Share;Applicable Percentages; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.03(c), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(d) So long as any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.03(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.08(d) (and Defaulting Lenders shall not participate therein).
(e) In the event that the Administrative Agent, the Borrower and the Issuing Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date date, if necessary as a result of a Loan funding pursuant to Section 2.08(e), such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances or participations in Letters of Credit Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure Loans in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the BorrowerApplicable Percentage.
Appears in 1 contract
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a), Section 2.2, or Section 2.11 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as such Defaulting Lender shall have complied with Section 4.04(b) and all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureSecured Obligations. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.04(a), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(cb) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitments, the Maximum Credit Amount and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Lenders, Super Majority Lenders, the Majority Lenders or the Required Lenders, as applicable, have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.02); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender and which affects such Defaulting Lender, shall require the consent of such Defaulting Lender; and provided further that no Defaulting Lender shall participate in any redetermination or affirmation of the Borrowing Base, but the Commitment of a Defaulting Lender may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of the LC Exposure of such Letter of Credit Exposure Defaulting Lender shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share Applicable Percentages (for the purposes of such reallocation, the Defaulting Lender’s Pro Rata Share of Commitment shall be disregarded in determining the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit ExposureNon-Defaulting Lender’s Applicable Percentage) but only to the extent that (A1) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments and (2) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances Credit Exposure plus its reallocated share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, subject to Section 12.19, no such reallocation shall not will constitute a waiver or release of any claim the Borrower, any other Credit Party, the Administrative Agent, the any Issuing Lender Bank or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one Business Day following notice by the Administrative Agent, Agent cash collateralize for the benefit of each Issuing Bank such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h2.08(e) for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.04 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) abovethis Section 4.04(b), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;Applicable Percentages after giving effect to such reallocation; and
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsthis Section 4.04(b)(iii), then, without prejudice to any rights or remedies of the any Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and all letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Banks (ratably) until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(c) So long as any Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.04(b), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 4.04(b)(iii)(A) (and Defaulting Lenders shall not participate therein).
(d) In the event that the Administrative Agent, the Borrower and the Issuing Lender Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender and such Lender is no longer a Defaulting Lender, then (i) the Letter of Credit Exposure LC Exposures of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date date, if necessary, such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances or Loans and/or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter Loans and/or participations in Letters of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the BorrowerApplicable Percentage.
Appears in 1 contract
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a), Section 2.2, or Section 2.11 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as such Defaulting Lender shall have complied with Section 4.04(b) and all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureSecured Obligations. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.04(a), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(cb) 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) Fees shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 3.05(a).
(ii) The Revolving Credit Commitments, the Maximum Revolving Credit Amount and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Lenders, the Majority Lenders, or the Required Lenders, as applicable, have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.02); provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender and which affects such Defaulting Lender, shall require the consent of such Defaulting Lender; and provided further that no Defaulting Lender shall participate in any redetermination or affirmation of the Borrowing Base, but the Revolving Credit Commitment of a Defaulting Lender may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of the LC Exposure of such Letter of Credit Exposure Defaulting Lender shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share Applicable Percentages (for the purposes of such reallocation, the Defaulting Lender’s Pro Rata Share of Revolving Credit Commitment shall be disregarded in determining the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit ExposureNon-Defaulting Lender’s Applicable Percentage) but only to the extent that (A1) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Revolving Credit Commitments and (2) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances Credit Exposure plus its reallocated share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Revolving Credit Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, subject to Section 12.19, no such reallocation shall not will constitute a waiver or release of any claim the Borrower, any other Credit Party, the Administrative Agent, the any Issuing Lender Bank or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one Business Day following notice by the Administrative Agent, Agent cash collateralize for the benefit of each Issuing Bank such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h2.08(e) for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.04 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) abovethis Section 4.04(b), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;Applicable Percentages after giving effect to such reallocation; and
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsthis Section 4.04(b)(iii), then, without prejudice to any rights or remedies of the any Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Credit Commitment that was utilized by such LC Exposure) and all letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Banks (ratably) until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(iv) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article X or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 12.08 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 Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank hereunder; third, to cash collateralize the Issuing Banks’ LC Exposure with respect to such Defaulting Lender in accordance with Section 4.04(b)(iii)(B), fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and cash collateralize the Issuing Banks’ future LC Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 4.04(b)(iii)(B); sixth, to the payment of any amounts owing to the Lenders or the Issuing Bank as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender’s 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 Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 6.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in LC ObligationsExposure are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to Section 4.04(b)(iii).Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 4.04(b)(iv) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(c) So long as any Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be one hundred percent (100%) covered by the Revolving Credit Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.04(b), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 4.04(b)(iii)(A) (and Defaulting Lenders shall not participate therein).
(d) In the event that the Administrative Agent, the Borrower and the Issuing Lender Banks each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender and such Lender is no longer a Defaulting Lender, then (i) the Letter of Credit Exposure LC Exposures of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such date date, if necessary, such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances or Loans and/or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter Loans and/or participations in Letters of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the BorrowerApplicable Percentage.
Appears in 1 contract
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a), Section 2.2, or Section 2.11 becomes a Defaulting Lender then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposurePercentage Share, then no payments will be made to such Defaulting Lender until such time as such Defaulting Lender shall have complied with Section 4.08(c) and all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Percentage Share of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.08(b), all principal will be paid ratably as provided in Section 2.11(e10.02(d).
(c) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.04.
(ii) The Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included 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 12.04); provided that (A) any waiver, amendment or modification requiring the consent of all Lenders pursuant to Section 12.04 or requiring the consent of each affected Lender with respect to any change to the Termination Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default or Borrowing Base Deficiency interest rates) and any increase in such Defaulting Lender’s Commitment, shall require the consent of such Defaulting Lender and (B) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e., the Percentage Share of the Borrowing Base) of a Defaulting Lender may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share Percentage Shares (for the purposes of such reallocation the Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and Commitment shall be disregarded in determining each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit ExposureNon-Defaulting Lender’s Percentage Share) but only to the extent that (AI) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments, (II) the conditions set forth in Section 6.02 are satisfied at such time and (III) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances Credit Exposure plus its reallocated share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one three (3) Business Day Days following notice by the Administrative Agent, Agent cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h2.10(b) for so long as such Letter of Credit LC Exposure is outstanding, or if such Defaulting Lender becomes a Non-Defaulting Lender or is replaced, until such LC Exposure is allocated to such Lender or replacement Lender, as applicable;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.08 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii2.04(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.08(c)(iii)(A), then the fees payable to the Lenders pursuant to Section 2.6(b)(i2.04(a) and (iiiSection 2.04(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Percentage Share;; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.08(c)(iii), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii2.04(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(d) So long as any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower (in any combination thereof) in accordance with Section 4.08(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 4.08(c)(i) (and Defaulting Lenders shall not participate therein).
(e) In the event that the Administrative Agent, the Borrower and the Issuing Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date date, if necessary such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances or participations in Letters of Credit Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure Loans in accordance with its Pro Rata Percentage Share, and (ii) if no Default exists, then any such cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
Appears in 1 contract
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.01(a), Section 2.2, 2.01(b) or Section 2.11 2.07(d), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Credit Exposure Loans which results in its outstanding applicable Advances and Loans being less than its Pro Rata Share of Letter of Credit Exposure being less than its pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureLoans, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share Pro Rata Share of the aggregate outstanding applicable Advances and Letter of Credit ExposureLoans. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to an applicable Advance or Letter of Credit Obligations a Loan while one (1) or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings for which such Defaulting Lender(s) shall have failed to fund its pro rata share Pro Rata Share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Pro Rata Share of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b), all principal will be paid ratably as provided in Section 2.11(e)2.08.
(c) If any Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) such Letter of Credit Exposure Notwithstanding Section 2.03, no Prepayment Premium or Make Whole Premium shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such due or payable on any Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each any amount prepaid hereunder if such Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) at the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion time of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrowerprepayment.
Appears in 1 contract
Samples: Credit Agreement (Trans Energy Inc)
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.01(a), Section 2.22.07(d), or Section 2.11 2.10(d) then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share pro rata share of Letter of Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share share of Letter of Credit Exposure being less than its pro rata share Pro Rata Share of the aggregate outstanding applicable Advances and Letter of Credit Exposure, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure. Further, if at any time prior to the acceleration or maturity of the Advances, the Administrative Agent shall receive any payment in respect of principal attributable to of an applicable Advance or Letter of Credit Obligations a Reimbursement Obligation while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Pro Rata Share of all Advances then outstanding. After acceleration or maturity of the Advances, subject to the first sentence of this Section 2.14(b2.17(b), all principal will be paid ratably as provided in Section 2.11(e)2.11.
(c) If any Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) such Letter of Credit Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed such Non-Non- Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 3.02 are satisfied at such time; provided that, subject to Section 9.24, such reallocation shall will not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the any Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h2.07(g) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 2.17 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or 2.08 (iiib) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii2.08(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the any Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii2.08(b) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the applicable Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. .
(d) In the event that the Administrative Agent, the Borrower and the Issuing Lender Lenders each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
Appears in 1 contract
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(b), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.05(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitment, the Maximum Credit Amount, the outstanding principal balance of the Loans and participation interests in Letters of Credit of such Defaulting Lender shall not be included 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 12.02), provided that any waiver, amendment or modification requiring the consent of each affected Lender and which affects such Defaulting Lender, shall require the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) Applicable Percentages but only to the extent that (A1) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments, (2) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances Credit Exposure plus its reallocated share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment, and (B3) the conditions set forth in Section 3.2 6.02 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, within one (1) Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h2.08(e) for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.05 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.05, then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;Applicable Percentages; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.05(c)(iii), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Revolving Credit Agreement (Halcon Resources Corp)
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(b), Section 2.22.09(d), Section 2.09(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances then outstanding. After acceleration or maturity of the Advances, subject to the first sentence of this Section 2.14(b), all principal will be paid ratably as provided in Section 2.11(e).
(c) If any Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender Loans then:
(i) such Letter of Credit Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Halcon Resources Corp)
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(b), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.04(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) If Notwithstanding any Letter provision of Credit Exposure exists at this Agreement to the time a contrary, if any Lender becomes a Defaulting Lender then:
(i) such Letter of Credit Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h) provisions shall apply for so long as such Letter of Credit Exposure Lender is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.:
Appears in 1 contract
Samples: Credit Agreement (Linn Energy, LLC)
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a), Section 2.22.3, or Section 2.11 2.12 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Credit Exposure being less than its pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure. Further, if at any time prior to the acceleration or maturity of the Advances, the Administrative Agent shall receive any payment in respect of principal attributable to an applicable Advance or Letter of Credit Obligations while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share of all Advances then outstanding. After acceleration or maturity of the Advances, subject to the first sentence of this Section 2.14(b2.15(b), all principal will be paid ratably as provided in Section 2.11(e2.12(e).
(c) If any Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) such Letter of Credit Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s 's Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s 's outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed the lesser of such Non-Defaulting Lender’s 's Pro Rata Share of the Borrowing Base and such Non-Defaulting Lender's Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h2.3(h) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 2.15 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i2.7(b)(i) or (iii) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i2.7(b)(i) and (iii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i2.7(b)(i) and (iii) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
Appears in 1 contract
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(a), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Credit Exposure, Exposures then no payments will be made to such Defaulting Lender until such time as such Defaulting Lender shall have complied with Section 4.03(c) and all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s such Lenders’ respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureSecured Obligations. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first solely to the Borrowings for which Borrowing(s) of, and LC Disbursements owed to, Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Borrowing(s) of, or LC Disbursements owed to, such Defaulting Lender(s) shall have failed to fund its pro rata share Lender until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.03(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) If Notwithstanding any Letter provision of Credit Exposure exists at this Agreement to the time a contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender thenis a Defaulting Lender:
(i) Fees shall cease to accrue on the unfunded portion of the Commitment of such Letter Defaulting Lender pursuant to Section 3.05.
(ii) any payment of Credit Exposure principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 10.02 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 12.08 shall be automatically reallocated among applied at such time or times as may be determined by the Non-Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lenders Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing Bank hereunder; third, to cash collateralize the Issuing Banks’ LC Exposure with respect to such Defaulting Lender in accordance with their respective Pro Rata Share this Section; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as reasonably determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize the Issuing Banks’ future LC Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with this Section; sixth, to the payment of any amounts owing to the Lenders or the Issuing Bank as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender’s Pro Rata Share breach of the Letter its obligations under this Agreement or under any other Loan Document; seventh, so long as no Default or Event of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only Default exists, to the extent that (A) payment of any amounts owing to the sum Borrower as a result of each Non-any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s outstanding Revolving Advances plus breach of its share obligations under this Agreement or under any other Loan Document; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the Letter principal amount of Credit Exposure, after giving effect to the reallocation provided herein, does any Loans or LC Disbursements in respect of which such Defaulting Lender has not exceed such Non-Defaulting Lender’s Commitmentfully funded its appropriate share, and (By) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.2 are 6.02 were satisfied at such time; provided thator waived, such reallocation payment shall not constitute be applied solely to pay the Loans of, and LC Disbursements owed to, all Non-Defaulting Lenders on a waiver or release pro rata basis prior to being applied to the payment of any claim the BorrowerLoans of, the Administrative Agentor LC Disbursements owed to, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause until such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if time as all Loans and funded and unfunded participations in the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting LenderBorrower’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii) with respect obligations corresponding to such Defaulting Lender’s Letter of Credit LC Exposure during are held by the period Lenders pro rata in accordance with the Commitments without giving effect to clause (iv) below. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section shall be deemed paid to and redirected by such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;, and each Lender irrevocably consents hereto.
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of The Commitment, the Letter of Maximum Credit Amount, the Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations participation interests in Letters of Credit of such Defaulting Lender shall not be included in determining whether all Lenders, the other Lenders Required Lenders, or the Majority Lenders, as the Administrative Agent shall determine applicable, have taken or may be necessary in order for such Lender take any action hereunder (including any consent to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower amendment or waiver pursuant to clause Section 12.02), provided that any waiver, amendment or modification requiring the consent of each affected Lender pursuant to Section 12.02 shall require the consent of such Defaulting Lender if it is adversely affected (c)(ii) above for the avoidance of doubt, a Defaulting Lender shall have such a consent right with respect to changing the Maturity Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender (other than the waiving of post-default interest rates) and any increase in such Defaulting Lender’s Commitment); and provided further that any increase, decrease, redetermination or affirmation of the Borrowing Base shall be returned to occur without the Borrower.participation of a Defaulting Lender, but the Commitment of a Defaulting Lender (i.
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Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.01(a), Section 2.22.07(d), or Section 2.11 2.10(d) then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share pro rata share of Letter of Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share share of Letter of Credit Exposure being less than its pro rata share Pro Rata Share of the aggregate outstanding applicable Advances and Letter of Credit Exposure, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure. Further, if at any time prior to the acceleration or maturity of the Advances, the Administrative Agent shall receive any payment in respect of principal attributable to of an applicable Advance or Letter of Credit Obligations a Reimbursement Obligation while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Pro Rata Share of all Advances then outstanding. After acceleration or maturity of the Advances, subject to the first sentence of this Section 2.14(b2.17(b), all principal will be paid ratably as provided in Section 2.11(e)2.11.
(c) If any Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) such Letter of Credit Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share 's share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s 's outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed the lesser of such Non-Defaulting Lender’s 's Pro Rata Share of the Borrowing Base and such Non-Defaulting Lender's Commitment, and (B) the conditions set forth in Section 3.2 3.02 are satisfied at such time; provided that, such reallocation shall not will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h2.07(g) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 2.17 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or 2.08 (iiib) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii2.08(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii2.08(b) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. .
(d) In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
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Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.01(a), Section 2.22.07(d), or Section 2.11 2.10(d) then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share pro rata share of Letter of Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share share of Letter of Credit Exposure being less than its pro rata share Pro Rata Share of the aggregate outstanding applicable Advances and Letter of Credit Exposure, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure. Further, if at any time prior to the acceleration or maturity of the Advances, the Administrative Agent shall receive any payment in respect of principal attributable to of an applicable Advance or Letter of Credit Obligations a Reimbursement Obligation while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Pro Rata Share of all Advances then outstanding. After acceleration or maturity of the Advances, subject to the first sentence of this Section 2.14(b2.17(b), all principal will be paid ratably as provided in Section 2.11(e)2.11.
(c) If any Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) such Letter of Credit Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed the lesser of such Non-Defaulting Lender’s Pro Rata Share of the Borrowing Base and such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 3.02 are satisfied at such time; provided that, such reallocation shall not will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h2.07(g) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 2.17 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or 2.08 (iiib) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii2.08(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii2.08(b) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. .
(d) In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
Appears in 1 contract
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(a), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 10.02 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 12.08 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 Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank; third, to cash collateralize the Issuing Banks’ LC Exposure with respect to such Defaulting Lender in accordance with this Section 4.03; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize the Issuing Banks’ future LC Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with this Section 4.03; sixth, to the payment of any amounts owing to the Lenders or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Issuing Banks against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement or under any other Loan Document; seventh, so long as no Default or Event of Default exists, to the exercise payment of any amounts owing to the Borrower as a result of any judgment of a set-off shall have received court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement or under any other Loan Document; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its outstanding applicable Advances appropriate share, and (y) such Loans were made or Pro Rata Share of Letter the related Letters of Credit Exposure which results were issued at a time when the conditions set forth in its outstanding applicable Advances Section 6.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Pro Rata Share of Letter of Credit Exposure being less than its LC Disbursements owed to, all non-Defaulting Lenders on a pro rata share basis prior to being applied to the payment of the aggregate outstanding applicable Advances and Letter of Credit Exposureany Loans of, then no payments will be made to or LC Disbursements owed to, such Defaulting Lender until such time as all amounts due Loans and owing funded and unfunded participations in the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure are held by the Lenders have been equalized pro rata in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureCommitments without giving effect to clause (c) below. FurtherAny payments, if at any time prior prepayments or other amounts paid or payable to the acceleration a Defaulting Lender that are applied (or maturity of the Advances, the Administrative Agent shall receive any payment in respect of principal attributable held) to an applicable Advance pay amounts owed by a Defaulting Lender or Letter of Credit Obligations while one or more Defaulting Lenders to post cash collateral pursuant to this Section 4.03 shall be party deemed paid to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings for which and redirected by such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or Lender, and each Lender (including each Defaulting Lender) is owed its pro rata share of all Advances then outstanding. After acceleration or maturity of the Advances, subject to the first sentence of this Section 2.14(b), all principal will be paid ratably as provided in Section 2.11(e)irrevocably consents hereto.
(c) If Notwithstanding any Letter provision of Credit Exposure exists at this Agreement to the time a contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender thenis a Defaulting Lender:
(i) such Letter of Credit Exposure Fees shall be automatically reallocated among cease to accrue on the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated unfunded portion of the Letter Commitment of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;3.05.
(ivii) if Notwithstanding anything to the Letter of contrary in this Agreement, the Commitment, the Maximum Credit Exposure Amount, the outstanding principal balance of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) Loans and (iii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations participation interests in Letters of Credit of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower modification pursuant to clause (c)(ii) above with respect to such Section 12.02); provided that any waiver, amendment or other modification requiring the consent of each affected Lender shall be returned to require the Borrower.consent of such Defaulting Lender; and provided further that any redetermination or affirmation of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment of such Defaulting Lender (i.
Appears in 1 contract
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(a), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as such Defaulting Lender shall have complied with Section 4.03(c) and all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.03(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitment of such Defaulting Lender shall not be included in determining whether all Lenders, the Borrowing Base Increasing Lenders, the Required Lenders or the Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.02), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender shall require the consent of such Defaulting Lender; and provided further that any redetermination or affirmation of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e. the Applicable Percentage of the Borrowing Base of a Defaulting Lender) may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share Applicable Percentages (for the purposes of such reallocation the Defaulting Lender’s Pro Rata Share of Commitment shall be disregarded in determining the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit ExposureNon-Defaulting Lender’s Applicable Percentage) but only to the extent that (Ax) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all Non-Defaulting Lenders’ Commitments, (y) the conditions set forth in Section 6.02 are satisfied at such time and (z) the sum of each Non-Non- Defaulting Lender’s outstanding Revolving Advances Credit Exposure plus its reallocated share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, such Defaulting Lender’s LC Exposure does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one Business Day following notice by the Administrative Agent, Agent cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h) 10.02 for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.03 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.03(c), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;Applicable Percentages; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.03(c)(iii), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(d) So long as any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.03(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.08(d) (and Defaulting Lenders shall not participate therein).
(e) In the event that the Administrative Agent, the Borrower and the Issuing Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date date, if necessary as a result of a Loan funding pursuant to Section 2.08(e), such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances or participations in Letters of Credit Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure Loans in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the BorrowerApplicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Cimarex Energy Co)
Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a), Section 2.2, or Section 2.11 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Credit Exposure being less than its pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure. Further, if at any time prior to the acceleration or maturity of the Advances, the Administrative Agent shall receive any payment in respect of principal attributable to an applicable Advance or Letter of Credit Obligations while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share of all Advances then outstanding. After acceleration or maturity of the Advances, subject to the first sentence of this Section 2.14(b), all principal will be paid ratably as provided in Section 2.11(e).
(c) If any Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) such Letter of Credit Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, subject to Section 9.22, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (iA) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (iiB) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
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Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(b), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as all US 793906v.7 amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.04(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitment, the Maximum Credit Amount, the outstanding principal balance of the Loans and participation interests in Letters of Credit of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders, the Majority Tier I Lenders, the Super-Majority Lenders or the Super-Majority Tier I Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.02), provided that any waiver, amendment or modification requiring the consent of each affected Lender and which affects such Defaulting Lender, shall require the consent of such Defaulting Lender; and provided further that no Defaulting Lender shall participate in any redetermination or affirmation of the Borrowing Base, but the Commitments (i.e., the Applicable Percentage of the Borrowing Base of a Defaulting Lender) may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall automatically be automatically reallocated (effective as of the date such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) Applicable Percentages but only to the extent that (A1) the sum of each all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, LC Exposure does not exceed such the total of all Non-Defaulting Lender’s Commitment, Lenders’ Commitments and (B2) the conditions set forth in Section 3.2 6.02 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one three Business Day Days following notice by the Administrative Agent, Agent cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h2.08(e) for so long as such Letter of Credit LC Exposure is outstanding;; US 793906v.7
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.04 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.04(c), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;Applicable Percentages after giving effect to such reallocation; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.04(c)(iii), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(d) So long as any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.04(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 4.04(c)(iii)(A) (and Defaulting Lenders shall not participate therein).
(e) In the event that the Administrative Agent, the Borrower and the Issuing Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure LC Exposures of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances Loans or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure Loans in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the BorrowerApplicable Percentage.
Appears in 1 contract
Samples: Credit Agreement (Linn Energy, LLC)
Payments and Deductions to a Defaulting Lender. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) If any fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a3.05(a), Section 2.2, or Section 2.11 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.;
(b) If the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included 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 12.02(b)); provided that (i) any waiver, amendment or modification requiring the consent of all Lenders pursuant to Section 12.02(b) (other than Section 12.02(b)(ii)) or requiring the consent of each affected Lender pursuant to Section 12.02(b)(iii) or (iv), shall require the consent of such Defaulting Lender (which for the avoidance of doubt would include any change to the Maturity Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default interest rates) and any increase in such Defaulting Lender’s Commitment) and (ii) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Commitment (i.e. the Applicable Percentage of the Borrowing Base) of a Defaulting Lender as a result may not be increased without the consent of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Credit Exposure being less than its pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure. Further, if at any time prior to the acceleration or maturity of the Advances, the Administrative Agent shall receive any payment in respect of principal attributable to an applicable Advance or Letter of Credit Obligations while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share of all Advances then outstanding. After acceleration or maturity of the Advances, subject to the first sentence of this Section 2.14(b), all principal will be paid ratably as provided in Section 2.11(e).;
(c) If if any Letter of Credit LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
Lender, then (i) all or any part of such Letter LC Exposure of Credit Exposure shall such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be automatically reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent Applicable Percentages; provided that (A) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances plus its share LC Exposure may not in any event exceed the Applicable Percentage of the Letter Maximum Credit Amount of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed such Non-Defaulting Lender’s Commitment, Lender as in effect at the time of such reallocation and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, neither such reallocation shall not nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender Bank or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
, (ii) if to the reallocation described in clause extent that all or any portion (ithe “unreallocated portion”) above of the Defaulting Lender’s LC Exposure cannot, or can only partially, be effectedso reallocated to Non-Defaulting Lenders, then whether by reason of the first proviso in Section 4.03(c)(i) or otherwise, the Borrower shall, shall within one two Business Day Days following notice by the Administrative Agent, Agent cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) ), in accordance with the procedures set forth in Section 2.2(h2.08(j) for so long as such Letter of Credit LC Exposure is outstanding;
, (iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 then 4.03(c), the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
, (iv) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) abovethis Section 4.03(c), then the Letter of Credit fees payable to for the account of the Lenders pursuant to Section 2.6(b)(i) and (iii3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
Applicable Percentages and the Borrower shall not be required to pay any such Letter of Credit fees to the Defaulting Lender pursuant to Section 3.05(b) with respect to such Defaulting Lender’s LC Exposure during the period that such Defaulting Lender’s LC Exposure is reallocated, or (v) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsthis Section 4.03(c), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all letter Letter of credit Credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. In ;
(d) the event Issuing Bank will not be required to issue any new Letter of Credit or amend any outstanding Letter of Credit to increase the amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, unless the Issuing Bank is reasonably satisfied that any exposure that would result from the exposure to such Defaulting Lender is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by cash collateralization or a combination thereof in accordance with clause (c) above or otherwise in a manner reasonably satisfactory to the Issuing Bank; and
(e) if the Borrower, the Administrative Agent, the Borrower Agent and the Issuing Bank agree in writing in their discretion that a Lender each agrees that is a Defaulting Lender has adequately remedied all matters that caused such Lender should no longer be deemed to be a Defaulting Lender, then (i) the Letter Administrative Agent will so notify the parties hereto, whereupon, as of Credit the effective date specified in such notice and subject to any conditions set forth therein, such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender and any applicable cash collateral shall be promptly returned to the Borrower and any LC Exposure of the Lenders such Lender reallocated pursuant to Section 4.03(c) shall be readjusted reallocated back to reflect such Lender; provided that, except to the inclusion extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrowerhaving been a Defaulting Lender.
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Payments and Deductions to a Defaulting Lender. (a) If The Borrower shall have the right, to the extent permitted by applicable law, to setoff any amounts owed to it by any Defaulting Lender or any of such Defaulting Lender’s Affiliates in respect of deposit liabilities against amounts due by the Borrower or any Guarantor to such Defaulting Lender or its Affiliates under this Agreement, provided that the amount of such set-off shall not exceed the amount of such Defaulting Lender’s Revolving Credit Exposures and interest. Further, if any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(a), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s of the Lenders respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.04(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) If Notwithstanding any Letter provision of Credit 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitment of such Defaulting Lender shall not be included in determining whether all Lenders or the Majority Lenders, as applicable, have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.02), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender.
(iii) if any LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) Applicable Percentages but only to the extent that (AI) the sum of each all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, LC Exposure does not exceed such the total of all Non-Defaulting Lender’s Commitment, Lenders’ Commitments and (BII) the conditions set forth in Section 3.2 6.02 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one Business Day following notice by the Administrative Agent, Agent cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h2.08(e) for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.04 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.04(c), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;Applicable Percentages; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.04(c)(iii), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(d) So long as any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.04(c), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 2.08(d) (and Defaulting Lenders shall not participate therein).
(e) In the event that the Administrative Agent, the Borrower and the Issuing Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances or participations in Letters of Credit Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure Loans in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the BorrowerApplicable Percentage.
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Payments and Deductions to a Defaulting Lender. (a) If any Revolving Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a), Section 2.2, or Section 2.11 becomes a Defaulting Lender then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Revolving Lender to satisfy such LenderRevolving Xxxxxx’s unsatisfied obligations under such Sections hereunder until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Revolving Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposurePercentage Share, then no payments will be made to such Defaulting Lender until such time as such Defaulting Lender shall have complied with Section 4.08(c) and all amounts due and owing to the Lenders have been equalized in accordance with each LenderRevolving Xxxxxx’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Revolving Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Revolving Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such revolving Borrowing(s) are paid in full or each Revolving Lender (including each Defaulting Lender) is owed its pro rata share Percentage Share of all Advances Revolving Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.08(b), all principal will be paid ratably as provided in Section 2.11(e10.02(d).
(c) 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:
(i) Fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.04.
(ii) The Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included 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 12.04); provided that (A) any waiver, amendment or modification requiring the consent of all Lenders pursuant to Section 12.04 or requiring the consent of each affected Lender with respect to any change to the Termination Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender, any decrease of any interest rate applicable to Loans made by such Defaulting Lender (other than the waiving of post-default or Deficiency interest rates) and any increase in such Defaulting Lender’s Revolving Commitment, shall require the consent of such Defaulting Lender and (B) any redetermination, whether an increase, decrease or affirmation, of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Revolving Commitment (i.e., the Percentage Share of the Borrowing Base) of a Defaulting Lender may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure or Swingline Exposure exists at the time a Revolving Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure or Swingline Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share Percentage Shares (for the purposes of such reallocation the Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and Revolving Commitment shall be disregarded in determining each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit ExposureNon-Defaulting Lender’s Percentage Share) but only to the extent that (AI) the sum of all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure and Swingline Exposure does not exceed the total of all Non-Defaulting Lenders’ Revolving Commitments, (II) the conditions set forth in Section 6.02 are satisfied at such time and (III) the sum of each Non-Defaulting Lender’s outstanding Revolving Advances Credit Exposure plus its reallocated share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, such Defaulting Lender’s LC Exposure and Swingline Exposure does not exceed such Non-Defaulting Lender’s Revolving Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one three (3) Business Day Days following notice by the Administrative Agent, Agent cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure and Swingline Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h2.10(b) for so long as such Letter of Credit LC Exposure or Swingline Exposure is outstanding, or if such Defaulting Lender becomes a Non-Defaulting Lender or is replaced, until such LC Exposure and Swingline Exposure is allocated to such Revolving Lender or replacement Revolving Lender, as applicable;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.08 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii2.04(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.08(c)(iii)(A), then the fees payable to the Lenders pursuant to Section 2.6(b)(i2.04(a) and (iiiSection 2.04(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Percentage Share;; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.08(c)(iii), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii2.04(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
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Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(a), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances Revolving Credit Exposure or Pro Rata Share of Letter of Credit Term Loan Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure or Term Loan Exposure, as applicable, being less than its pro rata share Applicable Revolving Percentage or Applicable Term Loan Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures or Term Loan Exposures, as applicable, then no payments will be made to such Defaulting Lender until such time as such Defaulting Lender shall have complied with Section 4.03(c) and all amounts due and owing to the Revolving Lenders or Term Loan Lenders, as applicable, have been equalized in accordance with each Lender’s such Lenders’ respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureSecured Obligations. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first solely to the Borrowings for which Borrowing(s) of, and LC Disbursements owed to, Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Borrowing(s) of, or LC Disbursements owed to, such Defaulting Lender(s) shall have failed to fund its pro rata share Lender until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.03(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitment, the Maximum Revolving Credit Amount, the Maximum Term Loan Amount, the Revolving Credit Exposure, the Term Loan Exposure and participation interests in Letters of Credit of such Defaulting Lender shall not be included in determining whether all Lenders, all Revolving Lenders, all Term Loan Lenders, the Required Revolving Lenders, the Majority Term Loan Lenders, the Majority Revolving Lenders or the Majority Lenders, as applicable, have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.02), provided that any waiver, amendment or modification requiring the consent of each affected Lender pursuant to Section 12.02 shall require the consent of such Defaulting Lender if it is adversely affected (for the avoidance of doubt, a Defaulting Lender shall have such a consent right with respect to changing the Revolving Maturity Date or Term Loan Maturity Date applicable to such Defaulting Lender, decreasing or forgiving any principal or interest due to such Defaulting Lender (other than the waiving of post-default interest rates) and any increase in such Defaulting Lender’s Commitment); and provided further that any increase, decrease, redetermination or affirmation of the Borrowing Base shall occur without the participation of a Defaulting Lender, but the Revolving Commitment of a Defaulting Lender (i.e. the Applicable Revolving Percentage of the Borrowing Base of a Defaulting Lender) may not be increased without the consent of such Defaulting Lender.
(iii) If any Letter of Credit LC Exposure exists at the time a Revolving Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of Applicable Revolving Percentages (calculated without regard to such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit ExposureRevolving Commitment) but only to the extent that (A) such reallocation does not cause the sum Revolving Credit Exposure of each any Non-Defaulting Lender to exceed such non-Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the Commitment. No reallocation provided herein, does not exceed such Non-Defaulting Lender’s Commitment, and (B) the conditions set forth in Section 3.2 are satisfied at such time; provided that, such reallocation hereunder shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or of any other Lender may have party hereunder against such a Defaulting Lender or cause such arising from that Lender having become a Defaulting Lender to be Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one three (3) Business Day Days following notice by the Administrative Agent, Agent cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h) 10.02 for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) no Defaulting Lender shall be entitled to receive any fee under 3.05
(a) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender);
(D) each Defaulting Lender shall be entitled to receive fees under Section 3.05(b) for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Applicable Revolving Percentage of the stated amount of Letters of Credit for which it has provided cash collateral pursuant to Section 2.08(i); provided that if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.03 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivE) if the Letter of Credit LC Exposure of the Nonnon-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.03(c)(iii), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Nonnon-Defaulting Lenders’ Pro Rata Share;Applicable Revolving Percentages; or
(vF) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.03(c), then, without prejudice to any rights or remedies of the Issuing Lender Banks or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Banks until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. .
(d) So long as any Lender is a Defaulting Lender, the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 4.03(c) or by the Defaulting Lender pursuant to Section 2.08(i), and participating interests in any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.08(d) (and Defaulting Lenders shall not participate therein).
(e) In the event that the Administrative Agent, the Borrower and the Issuing Lender Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date date, if necessary as a result of a Loan funding pursuant to Section 2.08(e), such Lender shall be deemed to have purchased purchase at par such of the Revolving Advances or participations in Letters of Credit outstanding Loans of the other Lenders or take such other actions as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure Loans in accordance with its Pro Rata ShareApplicable Percentage, and (ii) if whereupon such Lender will cease to be a Defaulting Lender; provided that no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above adjustments will be made retroactively with respect to such fees accrued or payments made by or on behalf of the Borrower while that Lender shall be returned was a Defaulting Lender; and provided further that except to the Borrowerextent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
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Payments and Deductions to a Defaulting Lender. (a) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.01(a), Section 2.22.07(d), or Section 2.11 2.10(d) then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share pro rata share of Letter of Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share share of Letter of Credit Exposure being less than its pro rata share Pro Rata Share of the aggregate outstanding applicable Advances and Letter of Credit Exposure, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit Exposure. Further, if at any time prior to the acceleration or maturity of the Advances, the Administrative Agent shall receive any payment in respect of principal attributable to of an applicable Advance or Letter of Credit Obligations a Reimbursement Obligation while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Pro Rata Share of all Advances then outstanding. After acceleration or maturity of the Advances, subject to the first sentence of this Section 2.14(b2.17(b), all principal will be paid ratably as provided in Section 2.11(e)2.11.
(c) If any Letter of Credit Exposure exists at the time a Lender becomes a Defaulting Lender then:
(i) such Letter of Credit Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share 's share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) but only to the extent that (A) the sum of each Non-Defaulting Lender’s 's outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, does not exceed the lesser of such Non-Defaulting Lender’s 's Pro Rata Share of the Borrowing Base and such Non-Defaulting Lender's Commitment, and (B) the conditions set forth in Section 3.2 3.02 are satisfied at such time; provided that, subject to Section 9.17, no such reallocation shall not will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, then the Borrower shall, within one Business Day following notice by the Administrative Agent, cash collateralize such Defaulting Lender’s share of the Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.2(h2.07(g) for so long as such Letter of Credit Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.14 2.17 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or 2.08 (iiib) with respect to such Defaulting Lender’s Letter of Credit Exposure during the period such Defaulting Lender’s Letter of Credit Exposure is cash collateralized;
(iv) if the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6(b)(i) and (iii2.08(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;
(v) if any Defaulting Lender’s share of the Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisions, then, without prejudice to any rights or remedies of the Issuing Lender or any Lender hereunder, all letter of credit fees payable under Section 2.6(b)(i) and (iii2.08(b) with respect to such Defaulting Lender’s share of the Letter of Credit Exposure shall be payable to the Issuing Lender until such Letter of Credit Exposure is cash collateralized and/or reallocated. .
(d) In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
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Payments and Deductions to a Defaulting Lender. (a) If The Borrower shall have the right, to the extent permitted by applicable law, to setoff any amounts owed to it by any Defaulting Lender or any of such Defaulting Lender’s Affiliates in respect of deposit liabilities against amounts due by the Borrower or any Guarantor to such Defaulting Lender or its Affiliates under this Agreement, provided that the amount of such set-off shall not exceed the amount of such Defaulting Lender’s Revolving Credit Exposures and interest. Further, if any Lender shall fail to make any payment required to be made by it pursuant to Section 2.1(a2.05(a), Section 2.22.08(d), Section 2.08(e) or Section 2.11 4.02 then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid in cash.
(b) If a Defaulting Lender (or a Lender who would be a Defaulting Lender but for the expiration of the relevant grace period) as a result of the exercise of a set-off shall have received a payment in respect of its outstanding applicable Advances or Pro Rata Share of Letter of Revolving Credit Exposure which results in its outstanding applicable Advances and Pro Rata Share of Letter of Revolving Credit Exposure being less than its pro rata share Applicable Percentage of the aggregate outstanding applicable Advances and Letter of Revolving Credit ExposureExposures, then no payments will be made to such Defaulting Lender until such time as all amounts due and owing to the Lenders have been equalized in accordance with each Lender’s of the Lenders respective pro rata share of the aggregate outstanding applicable Advances and Letter of Credit ExposureIndebtedness. Further, if at any time prior to the acceleration or maturity of the AdvancesLoans, the Administrative Agent shall receive any payment in respect of principal attributable to of a Loan or a reimbursement of an applicable Advance or Letter of Credit Obligations LC Disbursement while one or more Defaulting Lenders shall be party to this Agreement, the Administrative Agent shall apply such payment first to the Borrowings Borrowing(s) for which such Defaulting Lender(s) shall have failed to fund its pro rata share until such time as such Borrowing(s) are paid in full or each Lender (including each Defaulting Lender) is owed its pro rata share Applicable Percentage of all Advances Loans then outstanding. After acceleration or maturity of the AdvancesLoans, subject to the first sentence of this Section 2.14(b4.04(b), all principal will be paid ratably as provided in Section 2.11(e10.02(c).
(c) If Notwithstanding any Letter provision of Credit 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) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 3.05.
(ii) The Commitment of such Defaulting Lender shall not be included in determining whether all Lenders, the Majority Lenders or the Required Lenders, as applicable, have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 12.02), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender.
(iii) if any LC Exposure exists at the time a Lender becomes a Defaulting Lender then:
(iA) all or any part of such Letter of Credit LC Exposure shall be automatically reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Share of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Exposure (and each Lender is deemed to have purchased and assigned such participation interest in such reallocated portion of the Letter of Credit Exposure) Applicable Percentages but only to the extent that (AI) the sum of each all Non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s outstanding Revolving Advances plus its share of the Letter of Credit Exposure, after giving effect to the reallocation provided herein, LC Exposure does not exceed such the total of all Non-Defaulting Lender’s Commitment, Lenders’ Commitments and (BII) the conditions set forth in Section 3.2 6.02 are satisfied at such time; provided that, such reallocation shall not constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, then the Borrower shall, shall within one Business Day following notice by the Administrative Agent, Agent cash collateralize such Defaulting Lender’s share of the Letter of Credit LC Exposure (after giving effect to any partial reallocation pursuant to clause (iA) above) in accordance with the procedures set forth in Section 2.2(h2.08(e) for so long as such Letter of Credit LC Exposure is outstanding;
(iiiC) if the Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit LC Exposure pursuant to this Section 2.14 4.04 then the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.6(b)(i) or (iii3.05(b) with respect to such Defaulting Lender’s Letter of Credit LC Exposure during the period such Defaulting Lender’s Letter of Credit LC Exposure is cash collateralized;
(ivD) if the Letter of Credit LC Exposure of the Non-Defaulting Lenders is reallocated pursuant to clause (i) aboveSection 4.04(c), then the fees payable to the Lenders pursuant to Section 2.6(b)(i3.05(a) and (iiiSection 3.05(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Pro Rata Share;Applicable Percentages; or
(vE) if any Defaulting Lender’s share of the Letter of Credit LC Exposure is neither cash collateralized nor reallocated pursuant to the preceding provisionsSection 4.04(c)(iii), then, without prejudice to any rights or remedies of the Issuing Lender Bank or any Lender hereunder, all commitment fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.6(b)(i) and (iii3.05(b) with respect to such Defaulting Lender’s share of the Letter of Credit LC Exposure shall be payable to the Issuing Lender Bank until such Letter of Credit LC Exposure is cash collateralized and/or reallocated. In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then (i) the Letter of Credit Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall be deemed to have purchased at par such of the Revolving Advances or participations in Letters of Credit of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Advances and Letter of Credit Exposure in accordance with its Pro Rata Share, and (ii) if no Default exists, then any cash collateral posted by the Borrower pursuant to clause (c)(ii) above with respect to such Lender shall be returned to the Borrower.
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