The Agent, Fronting Lenders and Defaulting Lenders. (1) Except to the extent prohibited by applicable law, each Defaulting Lender shall be required to provide to the Agent cash in an amount, as shall be determined from time to time by the Agent or a Fronting Lender, as the case may be, in its discretion, equal to all obligations of such Defaulting Lender to the Agent or such Fronting Lender, as the case may be, that are owing or may become owing pursuant to this Agreement, including such Defaulting Lender’s obligation to pay its Rateable Portion of any indemnification, reimbursement or expense reimbursement amounts not paid by a Borrower. Such cash shall be held by the Agent in one or more cash collateral accounts, which accounts shall be in the name of the Agent and shall not be required to be interest bearing. The Agent shall and shall be entitled to apply the foregoing cash in accordance with Section 14.14(3), in the case of amounts owing to the Agent, or to pay the amounts owing to a Fronting Lender from the Defaulting Lender, in the case of amounts owing to such Fronting Lender pursuant hereto (including pursuant to Section 6.10). (2) In addition to the indemnity and reimbursement obligations noted in Section 14.9, the Lenders agree to indemnify the Agent (to the extent not reimbursed by the Borrowers and without limiting the obligations of the Borrowers hereunder) rateably according to their respective Rateable Portions (and in calculating the Rateable Portion of a Lender, ignoring the Commitments of Defaulting Lenders) any amount that a Defaulting Lender fails to pay the Agent and which is due and owing to the Agent pursuant to Section 14.9. Each Defaulting Xxxxxx agrees to indemnify each other Lender for any amounts paid by such Lender and which would otherwise be payable by the Defaulting Lender. (3) The Agent shall be entitled to set-off and/or withhold from any Defaulting Lender’s Rateable Portion of all payments received from a Borrower against such Defaulting Lender’s obligations to make payments and fund Loans required to be made by it and to purchase participations required to be purchased by it in each case under this Agreement and the other Documents. To the extent permitted by law, the Agent shall be entitled to withhold and deposit in one or more non-interest bearing cash collateral accounts in the name of the Agent all amounts (whether principal, interest, fees or otherwise) received by the Agent and due to a Defaulting Lender pursuant to this Agreement, for so long as such Lender is a Defaulting Lender, which amounts shall be used by the Agent: (a) first, to reimburse the Agent for any amounts owing to it, in its capacity as Agent, by such Defaulting Lender pursuant to any Document; (b) second, to the payment, on a pro rata basis, of any amounts owing by such Defaulting Lender to the Fronting Lenders hereunder; (c) third, to the reimbursement, on a pro rata basis, of any indemnity amounts owing by such Defaulting Lender pursuant to Section 14.14(2); (d) fourth, to repay on a pro rata basis the incremental portion of any Loans made by a Lender pursuant to Section 15.2(4) in order to fund a shortfall created by a Defaulting Lender and, upon receipt of such repayment, each such Lender shall be deemed to have assigned to the Defaulting Lender such incremental portion of such Loans; (e) fifth, to cash collateralize all other obligations of such Defaulting Lender to the Agent or the Fronting Lenders owing pursuant to this Agreement in such amount as shall be determined from time to time by the Agent or the relevant Fronting Lender, each in its discretion, including such Defaulting Lender’s obligation to pay its Rateable Portion of any indemnification, reimbursement or expense reimbursement amounts not paid by a Borrower; and (f) sixth, to fund from time to time the Defaulting Xxxxxx’s Rateable Portion of Loans, provided that any such funds in excess of such Defaulting Lender’s defaulted obligations shall be paid to the Defaulting Lender. (4) For greater certainty and in addition to the foregoing, neither the Agent nor any of its Affiliates nor any of their respective shareholders, officers, directors, employees, agents or representatives shall be liable to any Lender (including a Defaulting Lender ) for any action taken or omitted to be taken by it in connection with amounts payable by a Borrower to a Defaulting Lender and received and deposited by the Agent in a cash collateral account and applied in accordance with the provisions of this Agreement, save and except for the gross negligence or wilful misconduct of the Agent as determined by a final non-appealable judgment of a court of competent jurisdiction. (5) If any Letters of Credit are outstanding at the time a Lender becomes a Defaulting Lender (such Defaulting Lender’s Rateable Portion of the Outstanding Principal of such Letters of Credit is the “Defaulting Lender Exposure”), then: (a) to the extent the Defaulting Lender has not provided cash collateral for its Defaulting Lender Exposure pursuant to Sections 14.14(1) and 14.14(3)(e) above, such Defaulting Lender Exposure shall be reallocated among the non-Defaulting Lenders for the purposes of Section 6.10 in accordance with their respective Rateable Portions (disregarding any Defaulting Lender’s Commitment) but, for each non-Defaulting Lender, only to the extent that the sum of (i) any non-Defaulting Lender’s Rateable Portion of all outstanding Loans, plus (ii) such non-Defaulting Lender’s rateable share (after giving effect to the reallocation contemplated herein) of the Defaulting Lender Exposure, does not exceed such non-Defaulting Lender’s Commitment; (b) if the reallocation described in Section 14.14(5)(a) above cannot, or can only partially, be effected, the applicable Borrower shall within one (1) Banking Day following notice by any Fronting Lender prepay outstanding Letters of Credit (by the provision of cash collateral in accordance with Section 2.18(2)) to the extent necessary to allow a full reallocation of the Defaulting Lender Exposure as aforesaid; and (c) if the Rateable Portions of the non-Defaulting Lenders are reallocated pursuant to this Section 14.14(5), then the issuance fees payable to the Lenders pursuant to Section 6.11(1)shall be adjusted to give effect to such reallocations in accordance with each such non-Defaulting Lender’s Rateable Portions. (6) So long as any Lender is a Defaulting Lender, no Fronting Lender shall be required to issue any Letters of Credit unless such Fronting Lender is satisfied that the related exposure will be 100% covered by the Commitments of non-Defaulting Lenders and/or cash collateralized in accordance with this Section 14.14, and participating interests in any such newly issued Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 14.14(5)(a) or 15.2(4), as applicable.
Appears in 1 contract
The Agent, Fronting Lenders and Defaulting Lenders. (1) Except to the extent prohibited by applicable law, each Defaulting Lender shall be required to provide to the Agent cash in an amount, as shall be determined from time to time by the Agent or a Fronting Lender, as the case may be, in its discretion, equal to all obligations of such Defaulting Lender to the Agent or such Fronting Lender, as the case may be, that are owing or may become owing pursuant to this Agreement, including such Defaulting Lender’s obligation to pay its Rateable Portion of any indemnification, reimbursement or expense reimbursement amounts not paid by a Borrower. Such cash shall be held by the Agent in one or more cash collateral accounts, which accounts shall be in the name of the Agent and shall not be required to be interest bearing. The Agent shall and shall be entitled to apply the foregoing cash in accordance with Section 14.14(315.14(3), in the case of amounts owing to the Agent, or to pay the amounts owing to a Fronting Lender from the Defaulting Lender, in the case of amounts owing to such Fronting Lender pursuant hereto (including pursuant to Section 6.107.10).
(2) In addition to the indemnity and reimbursement obligations noted in Section 14.915.9, the Lenders agree to indemnify the Agent (to the extent not reimbursed by the Borrowers and without limiting the obligations of the Borrowers hereunder) rateably according to their respective Rateable Portions (and in calculating the Rateable Portion of a Lender, ignoring the Commitments of Defaulting Lenders) any amount that a Defaulting Lender fails to pay the Agent and which is due and owing to the Agent pursuant to Section 14.915.9. Each Defaulting Xxxxxx agrees to indemnify each other Lender for any amounts paid by such Lender and which would otherwise be payable by the Defaulting Lender.
(3) The Agent shall be entitled to set-off and/or withhold from any Defaulting Lender’s Rateable Portion of all payments received from a Borrower against such Defaulting Lender’s obligations to make payments and fund Loans required to be made by it and to purchase participations required to be purchased by it in each case under this Agreement and the other Documents. To the extent permitted by law, the Agent shall be entitled to withhold and deposit in one or more non-interest bearing cash collateral accounts in the name of the Agent all amounts (whether principal, interest, fees or otherwise) received by the Agent and due to a Defaulting Lender pursuant to this Agreement, for so long as such Lender is a Defaulting Lender, which amounts shall be used by the Agent:
(a) first, to reimburse the Agent for any amounts owing to it, in its capacity as Agent, by such Defaulting Lender pursuant to any Document;
(b) second, to the payment, on a pro rata basis, of any amounts owing by such Defaulting Lender to the Fronting Lenders hereunder;
(c) third, to the reimbursement, on a pro rata basis, of any indemnity amounts owing by such Defaulting Lender pursuant to Section 14.14(215.14(2);
(d) fourth, to repay on a pro rata basis the incremental portion of any Loans made by a Lender pursuant to Section 15.2(416.2(4) in order to fund a shortfall created by a Defaulting Lender and, upon receipt of such repayment, each such Lender shall be deemed to have assigned to the Defaulting Lender such incremental portion of such Loans;
(e) fifth, to cash collateralize all other obligations of such Defaulting Lender to the Agent or the Fronting Lenders owing pursuant to this Agreement in such amount as shall be determined from time to time by the Agent or the relevant Fronting Lender, each in its discretion, including such Defaulting Lender’s obligation to pay its Rateable Portion of any indemnification, reimbursement or expense reimbursement amounts not paid by a Borrower; and
(f) sixth, to fund from time to time the Defaulting Xxxxxx’s Rateable Portion of Loans, provided that any such funds in excess of such Defaulting Lender’s defaulted obligations shall be paid to the Defaulting Lender.
(4) For greater certainty and in addition to the foregoing, neither the Agent nor any of its Affiliates nor any of their respective shareholders, officers, directors, employees, agents or representatives shall be liable to any Lender (including a Defaulting Lender ) for any action taken or omitted to be taken by it in connection with amounts payable by a Borrower to a Defaulting Lender and received and deposited by the Agent in a cash collateral account and applied in accordance with the provisions of this Agreement, save and except for the gross negligence or wilful misconduct of the Agent as determined by a final non-appealable judgment of a court of competent jurisdiction.
(5) If any Letters of Credit are outstanding at the time a Lender becomes a Defaulting Lender (such Defaulting Lender’s Rateable Portion of the Outstanding Principal of such Letters of Credit is the “Defaulting Lender Exposure”), then:
(a) to the extent the Defaulting Lender has not provided cash collateral for its Defaulting Lender Exposure pursuant to Sections 14.14(115.14(1) and 14.14(3)(e15.14(3)(e) above, such Defaulting Lender Exposure shall be reallocated among the non-Defaulting Lenders for the purposes of Section 6.10 7.10 in accordance with their respective Rateable Portions (disregarding any Defaulting Lender’s Commitment) but, for each non-Defaulting Lender, only to the extent that the sum of (i) any non-Defaulting Lender’s Rateable Portion of all outstanding Loans, plus (ii) such non-Defaulting Lender’s rateable share (after giving effect to the reallocation contemplated herein) of the Defaulting Lender Exposure, does not exceed such non-Defaulting Lender’s Commitment;
(b) if the reallocation described in Section 14.14(5)(a15.14(5)(a) above cannot, or can only partially, be effected, the applicable Borrower shall within one (1) Banking Day following notice by any Fronting Lender prepay outstanding Letters of Credit (by the provision of cash collateral in accordance with Section 2.18(22.19(2)) to the extent necessary to allow a full reallocation of the Defaulting Lender Exposure as aforesaid; and
(c) if the Rateable Portions of the non-Defaulting Lenders are reallocated pursuant to this Section 14.14(515.14(5), then the issuance fees payable to the Lenders pursuant to Section 6.11(1)shall 7.11(1)shall be adjusted to give effect to such reallocations in accordance with each such non-Defaulting Lender’s Rateable Portions.
(6) So long as any Lender is a Defaulting Lender, no Fronting Lender shall be required to issue any Letters of Credit unless such Fronting Lender is satisfied that the related exposure will be 100% covered by the Commitments of non-Defaulting Lenders and/or cash collateralized in accordance with this Section 14.1415.14, and participating interests in any such newly issued Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 14.14(5)(a15.14(5)(a) or 15.2(416.2(4), as applicable.
Appears in 1 contract
The Agent, Fronting Lenders and Defaulting Lenders. (1) Except to the extent prohibited by applicable law, each Each Defaulting Lender shall be required to provide to the Agent cash in an amount, as shall be determined from time to time by the Agent or a Fronting Lender, as the case may be, in its discretion, equal to all obligations of such Defaulting Lender to the Agent or such Fronting Lender, as the case may be, that are owing or may become owing pursuant to this Agreement, including such Defaulting Lender’s 's obligation to pay its Rateable Portion of any indemnification, reimbursement or expense reimbursement amounts not paid by a Borrower. Such cash shall be held by the Agent in one or more cash collateral accounts, which accounts shall be in the name of the Agent and shall not be required to be interest bearing. The Agent shall and shall be entitled to apply the foregoing cash in accordance with Section 14.14(315.14(3), in the case of amounts owing to the Agent, or to pay the amounts owing to a Fronting Lender from the Defaulting Lender, in the case of amounts owing to such Fronting Lender pursuant hereto (including pursuant to Section 6.107.10).
(2) In addition to the indemnity and reimbursement obligations noted in Section 14.915.9, the Lenders agree to indemnify the Agent (to the extent not reimbursed by the Borrowers and without limiting the obligations of the Borrowers hereunder) rateably according to their respective Rateable Portions (and in calculating the Rateable Portion of a Lender, ignoring the Commitments of Defaulting Lenders) any amount that a Defaulting Lender fails to pay the Agent and which is due and owing to the Agent pursuant to Section 14.915.9. Each Defaulting Xxxxxx Lender agrees to indemnify each other Lender for any amounts paid by such Lender and which would otherwise be payable by the Defaulting Lender.
(3) The Agent shall be entitled to set-off and/or withhold from any Defaulting Lender’s 's Rateable Portion of all payments received from a Borrower against such Defaulting Lender’s 's obligations to make payments and fund Loans required to be made by it and to purchase participations required to be purchased by it in each case under this Agreement and the other Documents. To the extent permitted by law, the Agent shall be entitled to withhold and deposit in one or more non-interest bearing cash collateral accounts in the name of the Agent all amounts (whether principal, interest, fees or otherwise) received by the Agent and due to a Defaulting Lender pursuant to this Agreement, for so long as such Lender is a Defaulting Lender, which amounts shall be used by the Agent:
(a) first, to reimburse the Agent for any amounts owing to it, in its capacity as Agent, by such Defaulting Lender pursuant to any Document;
(b) second, to the payment, on a pro rata basis, of any amounts owing by such Defaulting Lender to the Fronting Lenders hereunder;
(c) third, to the reimbursement, on a pro rata basis, of any indemnity amounts owing by such Defaulting Lender pursuant to Section 14.14(215.14(2);
(d) fourth, to repay on a pro rata basis the incremental portion of any Loans made by a Lender pursuant to Section 15.2(416.2(4) in order to fund a shortfall created by a Defaulting Lender and, upon receipt of such repayment, each such Lender shall be deemed to have assigned to the Defaulting Lender such incremental portion of such Loans;
(e) fifth, to cash collateralize all other obligations of such Defaulting Lender to the Agent or the Fronting Lenders owing pursuant to this Agreement in such amount as shall be determined from time to time by the Agent or the relevant Fronting Lender, each in its discretion, including such Defaulting Lender’s 's obligation to pay its Rateable Portion of any indemnification, reimbursement or expense reimbursement amounts not paid by a Borrower; and
(f) sixth, to fund from time to time the Defaulting Xxxxxx’s Lender's Rateable Portion of Loans, provided that any such funds in excess of such Defaulting Lender’s 's defaulted obligations shall be paid to the Defaulting Lender.
(4) For greater certainty and in addition to the foregoing, neither the Agent nor any of its Affiliates nor any of their respective shareholders, officers, directors, employees, agents or representatives shall be liable to any Lender (including a Defaulting Lender ) for any action taken or omitted to be taken by it in connection with amounts payable by a Borrower to a Defaulting Lender and received and deposited by the Agent in a cash collateral account and applied in accordance with the provisions of this Agreement, save and except for the gross negligence or wilful misconduct of the Agent as determined by a final non-appealable judgment of a court of competent jurisdiction.
(5) If any Letters of Credit are outstanding at the time a Lender becomes a Defaulting Lender (such Defaulting Lender’s 's Rateable Portion of the Outstanding Principal of such Letters of Credit is the “"Defaulting Lender Exposure”"), then:
(a) to the extent the Defaulting Lender has not provided cash collateral for its Defaulting Lender Exposure pursuant to Sections 14.14(115.14(1) and 14.14(3)(e15.14(3)(e) above, such Defaulting Lender Exposure shall be reallocated among the non-Defaulting Lenders for the purposes of Section 6.10 7.10 in accordance with their respective Rateable Portions (disregarding any Defaulting Lender’s 's Commitment) but, for each non-Defaulting Lender, only to the extent that the sum of (i) any non-Defaulting Lender’s 's Rateable Portion of all outstanding Loans, plus (ii) such non-Defaulting Lender’s 's rateable share (after giving effect to the reallocation contemplated herein) of the Defaulting Lender Exposure, does not exceed such non-Defaulting Lender’s 's Commitment;
(b) if the reallocation described in Section 14.14(5)(a15.14(5)(a) above cannot, or can only partially, be effected, the applicable Borrower shall within one (1) Banking Day following notice by any Fronting Lender prepay outstanding Letters of Credit (by the provision of cash collateral in accordance with Section 2.18(2)) to the extent necessary to allow a full reallocation of the Defaulting Lender Exposure as aforesaid; and
(c) if the Rateable Portions of the non-Defaulting Lenders are reallocated pursuant to this Section 14.14(515.14(5), then the issuance fees payable to the Lenders pursuant to Section 6.11(1)shall 7.11(1) shall be adjusted to give effect to such reallocations in accordance with each such non-Defaulting Lender’s 's Rateable Portions.
(6) So long as any Lender is a Defaulting Lender, no Fronting Lender shall be required to issue any Letters of Credit unless such Fronting Lender is satisfied that the related exposure will be 100% covered by the Commitments of non-Defaulting Lenders and/or cash collateralized in accordance with this Section 14.1415.14, and participating interests in any such newly issued Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 14.14(5)(a15.14(5)(a) or 15.2(416.2(4), as applicable.
Appears in 1 contract
The Agent, Fronting Lenders and Defaulting Lenders. (1) Except to the extent prohibited by applicable law, each Defaulting Lender shall be required to provide to the Agent cash in an amount, as shall be determined from time to time by the Agent or a Fronting Lender, as the case may be, in its discretion, equal to all obligations of such Defaulting Lender to the Agent or such Fronting Lender, as the case may be, that are owing or may become owing pursuant to this Agreement, including such Defaulting Lender’s obligation to pay its Rateable Portion of any indemnification, reimbursement or expense reimbursement amounts not paid by a Borrower. Such cash shall be held by the Agent in one or more cash collateral accounts, which accounts shall be in the name of the Agent and shall not be required to be interest bearing. The Agent shall and shall be entitled to apply the foregoing cash in accordance with Section 14.14(315.14(3), in the case of amounts owing to the Agent, or to pay the amounts owing to a Fronting Lender from the Defaulting Lender, in the case of amounts owing to such Fronting Lender pursuant hereto (including pursuant to Section 6.107.10).
(2) In addition to the indemnity and reimbursement obligations noted in Section 14.915.9, the Lenders agree to indemnify the Agent (to the extent not reimbursed by the Borrowers and without limiting the obligations of the Borrowers hereunder) rateably according to their respective Rateable Portions (and in calculating the Rateable Portion of a Lender, ignoring the Commitments of Defaulting Lenders) any amount that a Defaulting Lender fails to pay the Agent and which is due and owing to the Agent pursuant to Section 14.915.9. Each Defaulting Xxxxxx Lender agrees to indemnify each other Lender for any amounts paid by such Lender and which would otherwise be payable by the Defaulting Lender.
(3) The Agent shall be entitled to set-off and/or withhold from any Defaulting Lender’s Rateable Portion of all payments received from a Borrower against such Defaulting Lender’s obligations to make payments and fund Loans required to be made by it and to purchase participations required to be purchased by it in each case under this Agreement and the other Documents. To the extent permitted by law, the Agent shall be entitled to withhold and deposit in one or more non-interest bearing cash collateral accounts in the name of the Agent all amounts (whether principal, interest, fees or otherwise) received by the Agent and due to a Defaulting Lender pursuant to this Agreement, for so long as such Lender is a Defaulting Lender, which amounts shall be used by the Agent:
(a) first, to reimburse the Agent for any amounts owing to it, in its capacity as Agent, by such Defaulting Lender pursuant to any Document;
(b) second, to the payment, on a pro rata basis, of any amounts owing by such Defaulting Lender to the Fronting Lenders hereunder;
(c) third, to the reimbursement, on a pro rata basis, of any indemnity amounts owing by such Defaulting Lender pursuant to Section 14.14(215.14(2);
(d) fourth, to repay on a pro rata basis the incremental portion of any Loans made by a Lender pursuant to Section 15.2(416.2(4) in order to fund a shortfall created by a Defaulting Lender and, upon receipt of such repayment, each such Lender shall be deemed to have assigned to the Defaulting Lender such incremental portion of such Loans;
(e) fifth, to cash collateralize all other obligations of such Defaulting Lender to the Agent or the Fronting Lenders owing pursuant to this Agreement in such amount as shall be determined from time to time by the Agent or the relevant Fronting Lender, each in its discretion, including such Defaulting Lender’s obligation to pay its Rateable Portion of any indemnification, reimbursement or expense reimbursement amounts not paid by a Borrower; and
(f) sixth, to fund from time to time the Defaulting XxxxxxLender’s Rateable Portion of Loans, provided that that, any such funds in excess of such Defaulting Lender’s defaulted obligations shall be paid to the Defaulting Lender.
(4) For greater certainty and in addition to the foregoing, neither the Agent nor any of its Affiliates nor any of their respective shareholders, officers, directors, employees, agents or representatives shall be liable to any Lender (including a Defaulting Lender ) for any action taken or omitted to be taken by it in connection with amounts payable by a Borrower to a Defaulting Lender and received and deposited by the Agent in a cash collateral account and applied in accordance with the provisions of this Agreement, save and except for the gross negligence or wilful misconduct of the Agent as determined by a final non-appealable judgment of a court of competent jurisdiction.
(5) If any Letters of Credit are outstanding at the time a Lender becomes a Defaulting Lender (such Defaulting Lender’s Rateable Portion of the Outstanding Principal of such Letters of Credit is the “Defaulting Lender Exposure”), then:
(a) to the extent the Defaulting Lender has not provided cash collateral for its Defaulting Lender Exposure pursuant to Sections 14.14(115.14(1) and 14.14(3)(e15.14(3)(e) above, such Defaulting Lender Exposure shall be reallocated among the non-Defaulting Lenders for the purposes of Section 6.10 7.10 in accordance with their respective Rateable Portions (disregarding any Defaulting Lender’s Commitment) but, for each non-Defaulting Lender, only to the extent that the sum of (i) any non-Defaulting Lender’s Rateable Portion of all outstanding Loans, plus (ii) such non-Defaulting Lender’s rateable share (after giving effect to the reallocation contemplated herein) of the Defaulting Lender Exposure, does not exceed such non-Defaulting Lender’s Commitment;
(b) if the reallocation described in Section 14.14(5)(a15.14(5)(a) above cannot, or can only partially, be effected, the applicable Borrower shall within one (1) Banking Day following notice by any Fronting Lender prepay outstanding Letters of Credit (by the provision of cash collateral in accordance with Section 2.18(2)) to the extent necessary to allow a full reallocation of the Defaulting Lender Exposure as aforesaid; and
(c) if the Rateable Portions of the non-Defaulting Lenders are reallocated pursuant to this Section 14.14(515.14(5), then the issuance fees payable to the Lenders pursuant to Section 6.11(1)shall 7.11(1)shall be adjusted to give effect to such reallocations in accordance with each such non-Defaulting Lender’s Rateable Portions.
(6) So long as any Lender is a Defaulting Lender, no Fronting Lender shall be required to issue any Letters of Credit unless such Fronting Lender is satisfied that the related exposure will be 100% covered by the Commitments of non-Defaulting Lenders and/or cash collateralized in accordance with this Section 14.1415.14, and participating interests in any such newly issued Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 14.14(5)(a15.14(5)(a) or 15.2(416.2(4), as applicable.
Appears in 1 contract
The Agent, Fronting Lenders and Defaulting Lenders. (1) Except to the extent prohibited by applicable law, each Each Defaulting Lender shall be required to provide to the Agent cash in an amount, as shall be determined from time to time by the Agent or a Fronting Lender, as the case may be, in its discretion, equal to all obligations of such Defaulting Lender to the Agent or such Fronting Lender, as the case may be, that are owing or may become owing pursuant to this Agreement, including such Defaulting Lender’s 's obligation to pay its Rateable Portion of any indemnification, reimbursement or expense reimbursement amounts not paid by a Borrower. Such cash shall be held by the Agent in one or more cash collateral accounts, which accounts shall be in the name of the Agent and shall not be required to be interest bearing. The Agent shall and shall be entitled to apply the foregoing cash in accordance with Section 14.14(315.14(3), in the case of amounts owing to the Agent, or to pay the amounts owing to a Fronting Lender from the Defaulting Lender, in the case of amounts owing to such Fronting Lender pursuant hereto (including pursuant to Section 6.107.10).
(2) In addition to the indemnity and reimbursement obligations noted in Section 14.915.9, the Lenders agree to indemnify the Agent (to the extent not reimbursed by the Borrowers and without limiting the obligations of the Borrowers hereunder) rateably according to their respective Rateable Portions (and in calculating the Rateable Portion of a Lender, ignoring the Commitments of Defaulting Lenders) any amount that a Defaulting Lender fails to pay the Agent and which is due and owing to the Agent pursuant to Section 14.915.9. Each Defaulting Xxxxxx Lender agrees to indemnify each other Lender for any amounts paid by such Lender and which would otherwise be payable by the Defaulting Lender.
(3) The Agent shall be entitled to set-off and/or withhold from any Defaulting Lender’s 's Rateable Portion of all payments received from a Borrower against such Defaulting Lender’s 's obligations to make payments and fund Loans required to be made by it and to purchase participations required to be purchased by it in each case under this Agreement and the other Documents. To the extent permitted by law, the Agent shall be entitled to withhold and deposit in one or more non-interest bearing cash collateral accounts in the name of the Agent all amounts (whether principal, interest, fees or otherwise) received by the Agent and due to a Defaulting Lender pursuant to this Agreement, for so long as such Lender is a Defaulting Lender, which amounts shall be used by the Agent:
(a) first, to reimburse the Agent for any amounts owing to it, in its capacity as Agent, by such Defaulting Lender pursuant to any Document;
(b) second, to the payment, on a pro rata basis, of any amounts owing by such Defaulting Lender to the Fronting Lenders hereunder;
(c) third, to the reimbursement, on a pro rata basis, of any indemnity amounts owing by such Defaulting Lender pursuant to Section 14.14(215.14(2);
(d) fourth, to repay on a pro rata basis the incremental portion of any Loans made by a Lender pursuant to Section 15.2(416.2(4) in order to fund a shortfall created by a Defaulting Lender and, upon receipt of such repayment, each such Lender shall be deemed to have assigned to the Defaulting Lender such incremental portion of such Loans;
(e) fifth, to cash collateralize all other obligations of such Defaulting Lender to the Agent or the Fronting Lenders owing pursuant to this Agreement in such amount as shall be determined from time to time by the Agent or the relevant Fronting Lender, each in its discretion, including such Defaulting Lender’s 's obligation to pay its Rateable Portion of any indemnification, reimbursement or expense reimbursement amounts not paid by a Borrower; and
(f) sixth, to fund from time to time the Defaulting Xxxxxx’s Lender's Rateable Portion of Loans, provided that any such funds in excess of such Defaulting Lender’s 's defaulted obligations shall be paid to the Defaulting Lender.
(4) For greater certainty and in addition to the foregoing, neither the Agent nor any of its Affiliates nor any of their respective shareholders, officers, directors, employees, agents or representatives shall be liable to any Lender (including a Defaulting Lender ) for any action taken or omitted to be taken by it in connection with amounts payable by a Borrower to a Defaulting Lender and received and deposited by the Agent in a cash collateral account and applied in accordance with the provisions of this Agreement, save and except for the gross negligence or wilful misconduct of the Agent as determined by a final non-appealable judgment of a court of competent jurisdiction.
(5) If any Letters of Credit are outstanding at the time a Lender becomes a Defaulting Lender (such Defaulting Lender’s 's Rateable Portion of the Outstanding Principal or Outstanding Principal in U.S.$, as the case may be, of such Letters of Credit is the “"Defaulting Lender Exposure”"), then:
(a) to the extent the Defaulting Lender has not provided cash collateral for its Defaulting Lender Exposure pursuant to Sections 14.14(115.14(1) and 14.14(3)(e15.14(3)(e) above, such Defaulting Lender Exposure shall be reallocated among the non-Defaulting Lenders for the purposes of Section 6.10 7.10 in accordance with their respective Rateable Portions (disregarding any Defaulting Lender’s 's Commitment) but, for each non-Defaulting Lender, only to the extent that the sum of (i) any non-Defaulting Lender’s 's Rateable Portion of all outstanding Loans, plus (ii) such non-Defaulting Lender’s 's rateable share (after giving effect to the reallocation contemplated herein) of the Defaulting Lender Exposure, does not exceed such non-Defaulting Lender’s 's Commitment;
(b) if the reallocation described in Section 14.14(5)(a15.14(5)(a) above cannot, or can only partially, be effected, the applicable Borrower shall within one (1) Banking Day following notice by any Fronting Lender prepay outstanding Letters of Credit (by the provision of cash collateral in accordance with Section 2.18(2)) to the extent necessary to allow a full reallocation of the Defaulting Lender Exposure as aforesaid; and
(c) if the Rateable Portions of the non-Defaulting Lenders are reallocated pursuant to this Section 14.14(515.14(5), then the issuance fees payable to the Lenders pursuant to Section 6.11(1)shall 7.11(1) shall be adjusted to give effect to such reallocations in accordance with each such non-Defaulting Lender’s 's Rateable Portions.
(6) So long as any Lender is a Defaulting Lender, no Fronting Lender shall be required to issue any Letters of Credit unless such Fronting Lender is satisfied that the related exposure will be 100% covered by the Commitments of non-Defaulting Lenders and/or cash collateralized in accordance with this Section 14.1415.14, and participating interests in any such newly issued Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 14.14(5)(a15.14(5)(a) or 15.2(416.2(4), as applicable.
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