Defaulting Bank. Notwithstanding any other provision in this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, the following provisions shall apply so long as any Bank is a Defaulting Bank: (a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage. (b) The Fees under Section 2.11 shall cease to accrue on that portion of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations; (c) A Defaulting Bank may cease to be a Defaulting Bank as specified in the definition thereof. (d) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment. (e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter: (i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent (x) the sum of all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitment, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time; (ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding; (iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and (iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full. (f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein). (g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank. (h) In the event that the Agent, the Co-Borrowers, the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank. (i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank. (j) Notwithstanding anything to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”.
Appears in 4 contracts
Sources: Credit Agreement (Marlin Midstream Partners, LP), Credit Agreement (Marlin Midstream Partners, LP), Credit Agreement (Marlin Midstream Partners, LP)
Defaulting Bank. Notwithstanding any other provision in of this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees under Section 2.11 shall cease to accrue on that portion of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank as specified in the definition thereof.
(d) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only deemed to the extent (x) the sum of have assigned any and all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitmentpayments due to it from each Borrower, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principaloutstanding Loans, interestinterest or otherwise in respect of such Borrower in each case arising under this Agreement or the Loan Documents, fees or otherwise) shall, in lieu of being distributed to such the Administrative Agent and the remaining non-Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied Banks for application as follows:
(i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, hereunder in respect of such Borrower,
(ii) second, pro rata, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, Lenders hereunder in respect of such Borrower,
(iii) third, to the funding of cash collateralization any Loan in respect of any participating interest in any Letter of Credit or Swing Line Loan such Borrower in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), ,
(iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank Administrative Agent and the Co-Borrowersapplicable Borrower, held in such a non-interest bearing account as cash collateral for future funding obligations of any the Defaulting Bank under this Agreement, Agreement in respect of such Borrower,
(v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers such Borrower or the non-Defaulting Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers such Borrower or any Bank Banks against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and in respect of such Borrower, and
(vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction.
(b) The Commitment Percentage of such Defaulting Bank shall not be included in determining whether the Required Banks have taken or may take any action hereunder (including any consent to any amendment, provided that if waiver or other modification pursuant to Section 8.5); provided, (i) such payment is a prepayment of Defaulting Bank’s Commitment may not be increased or extended without its consent and (ii) the principal amount of, or interest payable on, Loans may not be reduced or excused or the final date of payment of any Loans principal or reimbursement obligations in respect of L/C Advances or Swing Line Loans interest may not be postponed as to such Defaulting Bank without such Defaulting Bank’s consent.
(c) No Defaulting Bank shall be entitled to receive any commitment fee for any period during which that Bank is a Defaulting Bank has funded in accordance with its participation obligations, such payment (and no Borrower shall be applied solely required to prepay pay any such fee that otherwise would have been paid to the Loans of, and reimbursement obligations owed to, Defaulting Bank).
(d) If any Swing Line Advances are outstanding to any Borrower at the time such Bank becomes a Defaulting Bank then:
(i) all or any part of the outstanding Swing Line Advances shall be reallocated among the non-Defaulting Banks pro rata prior in accordance with their respective Commitment Percentages, provided that no Bank shall be required to being applied lend in excess of its Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable Borrower shall within three (3) Business Days following notice by the Administrative Agent without prejudice to the prepayment any right or remedy available to such applicable Borrower hereunder and under applicable law, prepay such outstanding Swing Line Advances made to such Borrower; and
(iii) subject to Section 8.14, no reallocation hereunder shall constitute a waiver or release of any Loans, or reimbursement obligations owed to, claim of any party hereunder against a Defaulting Bank arising from that Bank having become a Defaulting Bank, including any claim of a non-Defaulting Bank as a result of such non-Defaulting Bank’s increased exposure following such reallocation.
(he) So long as such Bank is a Defaulting Bank, no Swing Line Lender shall be required to fund any Swing Line Advance, unless, in each case, it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks, and participating interests in any newly made Swing Line Advance shall be allocated among non-Defaulting Banks in a manner consistent with Section 7.10(d)(i) (and such Defaulting Bank shall not participate therein). If a Bankruptcy Event or a Bail-In Action with respect to a Bank Parent of a Bank shall occur following the date hereof and for so long as such event shall continue, no Swing Line Lender shall be required to fund any Swing Line Advance, unless such Swing Line Lender shall have entered into arrangements with the applicable Borrower or such Bank, satisfactory to such Swing Line Lender to defease any risk to it in respect of such Bank hereunder. In the event that the Administrative Agent, the Co-Borrowers, the Issuing Bank Borrowers and the Swing Line Bank Lenders each agree agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and outstanding Swing Line Loans Advances of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into Commitment Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by a Swap or on behalf of the Borrowers while that Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything ; and provided, further, that except to the contrary hereinextent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Bank will constitute a waiver or release of any claim of any party hereunder arising from that Bank’s having been a Defaulting Bank. Should the Administrative Agent be a Defaulting Bank, the Revolving Commitment Required Banks shall have the right to appoint a successor Administrative Agent with the prior written consent of such Defaulting Bank the Borrowers, which consent shall not be included for purposes of determining the “Majority Banks”unreasonably withheld or delayed.
Appears in 4 contracts
Sources: Credit Agreement (Blackrock Funds), Credit Agreement, Credit Agreement (BlackRock Series Fund, Inc.)
Defaulting Bank. Notwithstanding any other provision in this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, the following provisions shall apply so long as any Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Revolving Commitment Committed Line Portion and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings Loans and participate in Swing Line Loans Letters of Credit in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted PercentageAdvance Shares.
(b) The Fees under Section 2.11 shall cease to accrue on that portion of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank (i) as specified in the second sentence of the definition thereof.
, and (dii) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require extent such Defaulting Bank to assign all right, title and interest that it may have in all makes such purchases and/or Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase and/or accepts such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations as are required to make the Committed Percentage of each Bank, after giving effect to all such purchases and Swing Line new Loans shall be reallocated among and any amounts received by any Bank pursuant to Section 2.11(a)(i), equal to such Bank’s Effective Amount Percentage; provided that if there is more than one Defaulting Bank at such time, the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Committed Percentage but only to the extent (x) the sum of all of and the Effective Amounts Amount Percentage of the Non-Defaulting Banks plus such (including any Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitment, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (Bank that after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms required purchases of this Agreement, including without limitation Section 3.07, for so long as such Loans and acceptances of L/C Obligation or Swing Line LoanObligations, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant would cease to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, ) shall be allocated among calculated using the aggregate Committed Line Portions and Effective Amounts of only such Non-Defaulting Banks in a manner consistent with Section 3.03 the denominators of the Committed Percentage and Effective Amount Percentage calculations (in lieu of the Total Committed Line Portions and the Effective Amount of all Banks). Each Bank agrees to sell to and/or purchase from the Defaulting Banks shall not participate therein)Bank or such other Banks, such Effective Amounts as may be required to effect clause (ii) above.
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank.
(h) In the event that the Agent, the Co-Borrowers, the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(ic) No Swap SPT Contract entered into by a Swap an SPT Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap SPT Contract was entered, such Swap SPT Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”.
Appears in 3 contracts
Sources: Credit Agreement (Atmos Energy Corp), Credit Agreement (Atmos Energy Corp), Credit Agreement (Atmos Energy Corp)
Defaulting Bank. Notwithstanding any other provision in this Agreement Subject to the contrarySection 2.13.2, if at any time a Bank becomes a Defaulting Bank, the following provisions shall apply so long as any Bank is a Defaulting Bank:
that, as reasonably determined by the Administrative Agent, (a) Until such time as has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Swing Loans, within three Business Days of the Defaulting Bank ceases date required to be a Bank under this Agreement, funded by it will retain its Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed unless such Bank notifies the Administrative Agent and the applicable Borrower in writing that such Defaulting Bank will fail failure is the result of such Bank’s determination that one or more conditions precedent to satisfy funding (each of which conditions precedent, together with any funding obligation andapplicable default, accordinglyshall be specifically identified in such writing) has not been satisfied, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees has notified either Borrower, or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder or has made a public statement to that effect with respect to its funding obligations hereunder or generally under Section 2.11 shall cease other agreements in which it commits to accrue on that portion of extend credit (unless such Defaulting writing or public statement relates to such Bank’s Revolving Commitment obligation to fund a Loan hereunder and states that remains unfunded such position is based on such Bank’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or which has public statement) cannot been included in any L/C Obligations;
be satisfied), (c) A Defaulting has failed, within three Business Days after request by the Administrative Agent acting in good faith, to confirm in a manner reasonably satisfactory to the Administrative Agent that it will comply with its funding obligations hereunder, provided that such Bank may shall cease to be a Defaulting Bank as specified in upon receipt of such confirmation by the definition thereof.
Administrative Agent, or (d) At has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any time during debtor relief law, (ii) had a Default Periodreceiver, Agent may and upon conservator, trustee, administrator, assignee for the direction benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Bank shall not be a Defaulting Bank solely by virtue of the Majority Banks shallownership or acquisition of any equity interest in that Bank or any direct or indirect parent company thereof by a Government Authority, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and ownership interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent (x) the sum of all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitment, (y) any Non-Defaulting Bank’s Effective Amount plus result in or provide such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank.
(h) In the event that the Agent, the Co-Borrowers, the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into by a Swap Bank shall benefit immunity from the security package provided by jurisdiction of courts within the Security Documents, if at United States or from the time enforcement of judgments or writs of attachment on its assets or permit such Swap Contract was entered, such Swap Bank (or its Affiliatesuch governmental authority or instrumentality) was a Defaulting Bankto reject, repudiate, disavow or disaffirm any contracts or agreements made with such Person.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Alliancebernstein Holding L.P.), Revolving Credit Agreement (Alliancebernstein L.P.), Revolving Credit Agreement (Alliancebernstein L.P.)
Defaulting Bank. Notwithstanding any other provision in of this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees under Section 2.11 shall cease to accrue on that portion of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank as specified in the definition thereof.
(d) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only deemed to the extent (x) the sum of have assigned any and all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitmentpayments due to it from each Borrower, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principaloutstanding Loans, interestinterest or otherwise in respect of such Borrower in each case arising under this Agreement or the Loan Documents, fees or otherwise) shall, in lieu of being distributed to such the Administrative Agent and the remaining non-Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied Banks for application as follows:
(i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, hereunder in respect of such ▇▇▇▇▇▇▇▇,
(ii) second, pro rata, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, Lenders hereunder in respect of such ▇▇▇▇▇▇▇▇,
(iii) third, to the funding of cash collateralization any Loan in respect of any participating interest in any Letter of Credit or Swing Line Loan such Borrower in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), ,
(iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank Administrative Agent and the Co-Borrowersapplicable Borrower, held in such a non-interest bearing account as cash collateral for future funding obligations of any the Defaulting Bank under this Agreement, Agreement in respect of such Borrower,
(v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers such Borrower or the non-Defaulting Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers such Borrower or any Bank Banks against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and in respect of such Borrower, and
(vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank.
(hb) In the event that the AgentThe Commitment Percentage, the Co-BorrowersTranche A Commitment Percentage, the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving and/or Tranche B Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment Percentage of such Defaulting Bank shall not be included in determining whether the Required Banks have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 8.5); provided, (i) such Defaulting Bank’s Commitment may not be increased or extended without its consent and (ii) the principal amount of, or interest payable on, Loans may not be reduced or excused or the final date of payment of any principal or interest may not be postponed as to such Defaulting Bank without such Defaulting Bank’s consent.
(c) No Defaulting Bank shall be entitled to receive any commitment fee for purposes of determining any period during which that Bank is a Defaulting Bank (and no Borrower shall be required to pay any such fee that otherwise would have been paid to the “Majority Banks”Defaulting Bank).
(d) If any Swing Line Advances are outstanding to any Borrower at the time such Bank becomes a Defaulting Bank then:
Appears in 3 contracts
Sources: Credit Agreement (BlackRock Series Fund, Inc.), Credit Agreement (BlackRock Series Fund II, Inc.), Credit Agreement (BlackRock Series Fund II, Inc.)
Defaulting Bank. Notwithstanding any other provision in this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, the following provisions shall apply so long as any Bank is a Defaulting Bank:
(a) Until Notwithstanding anything to the contrary contained herein, in the event any Bank (x) has refused (which refusal constitutes a breach by such time as the Defaulting Bank ceases to be a Bank of its obligations under this Agreement, ) to make available its portion of any Loan or (y) notifies either Agent or Borrower that it will retain does not intend to make available its Revolving Commitment and will remain subject to all portion of any Loan (if the actual refusal would constitute a breach by such Bank of its obligations under this Agreement) (each, a “Bank Default”), all rights and obligations hereunder of such Bank (a “Defaulting Bank”) as to which a Bank hereunder, although it will Default is in effect and of the other parties hereto shall be presumed that modified to the extent of the express provisions of this Section 2.16 while such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate Default remains in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentageeffect.
(b) The Fees under Section 2.11 Loans shall cease be incurred pro rata from Banks (the “Non-Defaulting Banks”) which are not Defaulting Banks based on their respective Pro Rata Share of the Revolving Credit Commitment, and no Pro Rata Share of the Revolving Credit Commitment of any Bank or any Pro Rata Share of any Loans required to accrue be advanced by any Bank shall be increased as a result of such Bank Default. Amounts received in respect of principal of any type of Loans shall be applied to reduce the applicable Loans of each Bank (other than any Defaulting Bank) pro rata based on the aggregate of the outstanding Loans of that portion type of all Banks at the time of such application; provided that Agent shall not be obligated to transfer to a Defaulting Bank any payments received by Agent for the Defaulting Bank’s benefit, nor shall a Defaulting Bank be entitled to the sharing of any payments hereunder (including any principal, interest or fees). Amounts payable to a Defaulting Bank shall instead be paid to or retained by Agent. Agent may hold and, in its discretion, re-lend to Borrower the amount of such payments received or retained by it for the account of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;.
(c) A Defaulting Bank shall not be entitled to give instructions to Agent or to approve, disapprove, consent to or vote on any matters relating to this Agreement and the Other Documents. All amendments, waivers and other modifications of this Agreement and the other Loan Documents may cease be made without regard to a Defaulting Bank and, for purposes of the definition of “Required Banks”, a Defaulting Bank shall be deemed not to be a Defaulting Bank as specified in the definition thereofand not to have either Loans outstanding or a Revolving Credit Commitment.
(d) At any time during a Default Period, Agent may and upon the direction If there are Letter of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Credit Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists outstanding at the time a Bank becomes a Defaulting Bank or thereafter:
then the Borrower shall within five (i5) all or any part of Banking Days following notice by the Agent, cash collateralize such Defaulting BankLender’s Pro Rata Share of the L/C Letter of Credit Obligations and Swing Line Loans shall until (i) such Letter of Credit Obligations cease to be reallocated among the Non-outstanding, (ii) such Bank ceases to be a Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent Bank, or (xiii) the sum of all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Bank assigns its Pro Rata Share of the L/C such Letter of Credit Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitmentto one or more Banks or other assignees pursuant to Section 14.04, whichever shall first occur.
(ye) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions Other than as expressly set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e2.16, the rights and obligations of a Defaulting Bank (including the obligation to indemnify Agent) and the other parties hereto shall remain unchanged. Nothing in this Section 3.07 then the Co-Borrowers 2.16 shall not be required deemed to pay release any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable from its obligations under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicableother Loan Documents, shall be allocated among the Non-Defaulting Banks in alter such obligations, shall operate as a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to the payment waiver of any amounts owing default by such Defaulting Bank to the Agent hereunder, (ii) secondor shall prejudice any rights which Borrower, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers Agent or any Bank may have against such any Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to any default by such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bankhereunder.
(hf) In the event that the Agent, the Co-Borrowers, the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that retroactively cures to the satisfaction of Agent the breach which caused such a Bank to be become a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not no longer be included for purposes of determining the “Majority Banks”a Defaulting Bank and shall be treated as a Bank under this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Hampshire Group LTD), Credit Agreement (Hampshire Group LTD)
Defaulting Bank. Notwithstanding Subject to §5.14, any other provision Bank that (a) has failed to (i) perform all or any portion of its funding obligations hereunder, including in this Agreement respect of Loans or participations in respect of Letters of Credit or Swing Line Loans within three Business Days of the date required to be funded by it hereunder unless such Bank notifies the contraryAdministrative Agent and the Borrower in writing that such failure is the result of such Bank’s determination that one or more conditions precedent to funding (each of which conditions precedent, if at together with any time a Bank becomes a Defaulting applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Administrative Agent, any Issuing Bank, the following provisions shall apply so long as Swing Line Bank or any other Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases any other amount required to be a Bank under this Agreement, paid by it will retain its Revolving Commitment and will remain subject to all hereunder (including in respect of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate participation in Letters of Credit or Swing Line Loans in accordance with Loans) within three Business Days of the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
date when due, (b) The Fees has notified the Borrower, the Administrative Agent or any Bank that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under Section 2.11 shall cease other agreements generally in which it commits to accrue on that portion of extend credit (unless such Defaulting writing or public statement relates to such Bank’s Revolving Commitment obligation to fund a Loan hereunder and states that remains unfunded such position is based on such Bank’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or which has public statement) cannot been included in any L/C Obligations;
be satisfied), (c) A Defaulting has failed, within three Business Days after request by the Administrative Agent, to confirm in writing to the Administrative Agent that it will comply with its funding obligations (provided that such Bank may shall cease to be a Defaulting Bank as specified in pursuant to this clause (c) upon receipt of such written confirmation by the definition thereof.
Administrative Agent), or (d) At has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any time during bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, (ii) had a Default Periodreceiver, Agent may and upon conservator, trustee, administrator, assignee for the direction benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Bank shall not be a Defaulting Bank solely by virtue of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting ownership or acquisition of any equity interest in that Bank (or any direct or indirect parent company thereof by a governmental agency so long as such Default Period remains ownership interest does not result in effect at or provide such Bank with immunity from the end jurisdiction of courts within the United States or from enforcement of judgments or writs of attachment on its assets or permit such Bank (or governmental agency) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Bank. Any determination by the Administrative Agent that a Bank is a Defaulting Bank under clauses (a) through (d) above, and of the effective date of such notice period)status, require shall be conclusive and binding absent manifest error, and such Bank shall be deemed to be a Defaulting Bank (subject to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest§5.14) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent (x) the sum of all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitment, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice established therefor by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and subject to any applicable requirements written notice of lawsuch determination, which shall be applied (i) first, delivered by the Administrative Agent to the payment of any amounts owing by such Defaulting Bank to the Agent hereunderBorrower, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the each Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in each Bank promptly following such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bankdetermination.
(h) In the event that the Agent, the Co-Borrowers, the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Waste Management Inc), Revolving Credit Agreement (Waste Management Inc)
Defaulting Bank. Notwithstanding any other provision in of this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees under Section 2.11 shall cease to accrue on that portion of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank as specified in the definition thereof.
(d) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only deemed to the extent (x) the sum of have assigned any and all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitmentpayments due to it from each Borrower, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principaloutstanding Loans, interestinterest or otherwise in respect of such Borrower in each case arising under this Agreement or the Loan Documents, fees or otherwise) shall, in lieu of being distributed to such the Administrative Agent and the remaining non-Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied Banks for application as follows:
(i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, hereunder in respect of such Borrower,
(ii) second, pro rata, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, Lenders hereunder in respect of such Borrower,
(iii) third, to the funding of cash collateralization any Loan in respect of any participating interest in any Letter of Credit or Swing Line Loan such Borrower in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), ,
(iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank Administrative Agent and the Co-Borrowersapplicable Borrower, held in such a non-interest bearing account as cash collateral for future funding obligations of any the Defaulting Bank under this Agreement, Agreement in respect of such Borrower,
(v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers such Borrower or the non-Defaulting Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers such Borrower or any Bank Banks against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and in respect of such Borrower, and
(vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction.
(b) The Commitment Percentage of such Defaulting Bank shall not be included in determining whether the Required Banks have taken or may take any action hereunder (including any consent to any amendment, provided that if waiver or other modification pursuant to Section 8.5); provided, (i) such payment is a prepayment of Defaulting Bank’s Commitment may not be increased or extended without its consent and (ii) the principal amount of, or interest payable on, Loans may not be reduced or excused or the final date of payment of any Loans principal or reimbursement obligations in respect of L/C Advances or Swing Line Loans interest may not be postponed as to such Defaulting Bank without such Defaulting Bank’s consent.
(c) No Defaulting Bank shall be entitled to receive any commitment fee for any period during which that Bank is a Defaulting Bank has funded in accordance with its participation obligations, such payment (and no Borrower shall be applied solely required to prepay pay any such fee that otherwise would have been paid to the Loans of, and reimbursement obligations owed to, Defaulting Bank).
(d) If any Swing Line Advances are outstanding to any Borrower at the time such Bank becomes a Defaulting Bank then:
(i) all or any part of the outstanding Swing Line Advances shall be reallocated among the non-Defaulting Banks pro rata prior in accordance with their respective Commitment Percentages, provided that no Bank shall be required to being applied to lend in excess of its Commitment; and
(ii) if the prepayment of any Loansreallocation described in clause (i) above cannot, or reimbursement obligations owed tocan only partially, be effected, each applicable Borrower shall within three (3) Business Days following notice by the Administrative Agent without prejudice to any Defaulting Bankright or remedy available to such applicable Borrower hereunder and under applicable law, prepay such outstanding Swing Line Loans made to such Borrower.
(he) So long as such Bank is a Defaulting Bank, no Swing Line Lender shall be required to fund any Swing Line Loan, unless, in each case, it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks, and participating interests in any newly made Swing Line Loan shall be allocated among non-Defaulting Banks in a manner consistent with Section 7.10(d)(i) (and such Defaulting Bank shall not participate therein).
(f) If a Bankruptcy Event with respect to a Bank Parent shall occur following the date hereof and for so long as such event shall continue, the Swing Line Lender shall not be required to fund any Swing Line Loan, unless the Swing Line Lender shall have entered into arrangements with the applicable Borrower or such Bank, satisfactory to the Swing Line Lender to defease any risk to it in respect of such Bank hereunder.
(g) In the event that the Administrative Agent, the Co-Borrowers, the Issuing Bank Borrowers and the Swing Line Bank Lenders each agree agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and outstanding Swing Line Loans Advances of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not Commitment Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Bank will constitute a waiver or release of any claim of any party hereunder arising from that Bank’s having been a Defaulting Bank.
(ih) No Swap Contract entered into by a Swap Bank shall benefit from Should the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was Administrative Agent be a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment Required Banks shall have the right to appoint a successor Administrative Agent with the prior written consent of such Defaulting Bank the Borrowers, which consent shall not be included for purposes of determining the “Majority Banks”unreasonably withheld or delayed.
Appears in 2 contracts
Sources: Credit Agreement (Master Investment Portfolio), Credit Agreement (Blackrock Funds)
Defaulting Bank. Notwithstanding any other provision in (a) Remedies Against a Defaulting Bank. In addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement to the contraryor applicable law, if at any time a Bank becomes is a Defaulting Bank such Defaulting Bank's right to participate in the administration of the Revolving Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Majority Banks, shall be suspended while such Bank remains a Defaulting Bank, the following provisions shall apply so long as any . If a Bank is a Defaulting Bank:
(a) Until such time as Bank because it has failed to make timely payment to the Defaulting Bank ceases Agent of any amount required to be a Bank under this Agreement, it will retain its Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees under Section 2.11 shall cease to accrue on that portion of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank as specified in the definition thereof.
(d) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice paid to the applicable Defaulting Bank Agent hereunder (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent (x) the sum of all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitment, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after without giving effect to any partial reallocation pursuant notice or cure periods), in addition to clause other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of collect interest from such Defaulting Bank pursuant on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the overnight Federal Funds Rate, (ii) to Section 3.08 with respect withhold or setoff and to such Defaulting Bank’s Pro Rata Share apply in satisfaction of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if defaulted payment and any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i)related interest, then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount amounts otherwise payable to such Defaulting Bank hereunder under this Agreement or any other Loan Document until such defaulted payment and related interest has been paid in full and such default no longer exists and (whether on account of principal, interest, fees iii) to bring an action or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to the payment of any amounts owing by suit against such Defaulting Bank to the Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained to recover the defaulted amount and any related interest. Any amounts received by the Co-Borrowers or any Bank against such Defaulting Bank as Agent in respect of a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, 's Revolving Loans shall not be paid to such Defaulting Bank and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or as otherwise directed by a court of competent jurisdiction, provided that if paid to such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay upon the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank.
(h) In the event that the Agent, the Co-Borrowers, the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment default of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”being cured.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Alleghany Corp /De), 364 Day Revolving Credit Agreement (Alleghany Corp /De)
Defaulting Bank. Notwithstanding any other provision in of this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreementfees, it will retain its Revolving Commitment and will remain subject to all of its obligations as a Bank hereunderif applicable, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees under Section 2.11 shall cease to accrue on that the unfunded portion of the Commitment of such Defaulting Bank’s Revolving Bank pursuant to Section 2.7;
(b) the Commitment that remains unfunded or which has and Loans of such Defaulting Bank shall not been be included in determining whether the Required Banks or Super Majority Banks have taken or may take any L/C Obligationsaction hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.5); provided, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank affected thereby;
(c) A the Borrower may, at its sole expense and effort, upon notice to such Defaulting Bank may cease to be a Defaulting Bank as specified in and the definition thereof.
(d) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period)Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.6), all rightits available Commitment, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers if any, under this Agreement and to an assignee that shall assume such obligations (which assignee may be another Bank, if a Bank accepts such assignment); provided that the Loan Documents Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld; provided further that nothing contained in this clause (c) shall affect the obligations due to another Bank such Defaulting Bank; and
(if another Bank will consent to purchase such rightd) the Administrative Agent may, title and interest) or an Eligible Assignee in accordance with Section 10.07 its sole discretion (notwithstanding any contrary provision of this Agreement), if such Eligible Assignee can be found apply any amounts thereafter received by it from any Covered Party for the Co-Borrowers, for a purchase price equal to 100% account of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of satisfy such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent (x) the sum of obligations hereunder until all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitment, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement unsatisfied obligations are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank.
(h) fully paid. In the event that the Agent, the Co-Borrowers, the Issuing Bank Administrative Agent and the Swing Line Bank Borrower each agree agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting BankShare.
(i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”.
Appears in 2 contracts
Sources: Credit Agreement (Istar Inc.), Credit Agreement (Istar Inc.)
Defaulting Bank. Notwithstanding any other provision in this Agreement to Any Bank that, as reasonably determined by the contraryAgent, if at any time a Bank becomes a Defaulting Bank, the following provisions shall apply so long as any Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases has failed to be a Bank under this Agreement, it will retain its Revolving Commitment and will remain subject to all perform any of its funding obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate including in Swing Line respect of its Loans or participations in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees under Section 2.11 shall cease to accrue on that portion respect of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank as specified in the definition thereof.
(d) At any time during a Default Period, Agent may and upon the direction Letters of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation Credit or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent (x) the sum of all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving CommitmentLoans, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice of the date required to be funded by it hereunder and such failure is continuing, unless such failure arises out of a good faith dispute between such Bank and either the Borrower or the Agent as to whether one or more conditions precedent to funding has been satisfied (each of which conditions precedent together with any applicable default shall be specifically identified in writing by such Bank), (b) has notified the Borrower, the Agent or any Bank that it does not intend to comply with its funding obligations hereunder unless with respect to this clause such failure is subject to a good faith dispute as to whether one or more conditions precedent to funding has been satisfied (each of which conditions precedent together with any applicable default shall be specifically identified in writing by such Bank), (c) has failed, within two (2) Business Days after request by the Agent, to confirm in a manner reasonably satisfactory to the Agent Cash Collateralize that it will comply with its funding obligations; provided that, notwithstanding the provisions of §2.12, such Bank shall cease to be a Defaulting Bank upon the Agent’s receipt of confirmation that such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans Bank will comply with its funding obligations, or (after giving effect to any partial reallocation pursuant to clause d) has, or has a direct or indirect parent company that has, (i) above) become the subject of a proceeding under any bankruptcy, insolvency, reorganization, liquidation, conservatorship, assignment for the benefit of creditors, moratorium, receivership, rearrangement or similar debtor relief law of the United States or other applicable jurisdictions from time to time in accordance with the terms of this Agreementeffect, including without limitation Section 3.07any law for the appointment of the Federal Deposit Insurance Corporation or any other state or federal regulatory authority as receiver, conservator, trustee, administrator or any similar capacity, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such capacity, charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Bank shall not be a Defaulting Bank solely by virtue of the ownership or acquisition of any equity interest in that Bank or any direct or indirect parent company thereof by a governmental authority (including any agency, instrumentality, regulatory body, central bank or other authority) so long as such L/C Obligation ownership interest does not result in or Swing Line Loan, as applicable, is outstanding;
(iii) if provide such Bank with immunity from the Co-Borrowers Cash Collateralize any portion jurisdiction of such Defaulting Bank’s Pro Rata Share courts of the L/C Obligations pursuant United States or from the enforcement of judgments or writs of attachment of its assets or permit such Bank (or such governmental authority or instrumentality) to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i)reject, thenrepudiate, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocateddisavow, or repaid in full.
(f) So long as disaffirm any contracts or agreements made with such Person). Any determination by the Agent that a Bank is a Defaulting BankBank under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, the Issuing and such Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank.
(h) In the event that the Agent, the Co-Borrowers, the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank deemed to be a Defaulting Bank (subject to §2.12(g)) upon delivery of written notice of such determination to the Borrower and each Bank. Derivatives Contract. Any and all rate swap transactions, then the Pro Rata Share basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the L/C Obligations and Swing Line Loans foregoing (including any options to enter into any of the Banks shall be readjusted foregoing), whether or not any such transaction is governed by or subject to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such any master agreement. Not in limitation of the Loans foregoing, the term “Derivatives Contract” includes any and all transactions of any kind, and the other Banks as related confirmations, which are subject to the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided terms and conditions of, or governed by, any form of master agreement published by the Security DocumentsInternational Swaps and Derivatives Association, if at the time Inc., any International Foreign Exchange Master Agreement, or any other master agreement of similar type, including any such Swap Contract was entered, obligations or liabilities under any such Swap Bank (or its Affiliate) was a Defaulting Bankmaster agreement. Directions. See §14.12.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”.
Appears in 1 contract
Sources: Unsecured Master Loan Agreement (Ramco Gershenson Properties Trust)
Defaulting Bank. Notwithstanding any other provision in this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, the following provisions shall apply so long as any Bank is a Defaulting Bank:.
(a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Revolving Commitment Committed Line Portion and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings Loans and participate in Swing Line Loans Letters of Credit in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted PercentageShares.
(b) The Fees under Section 2.11 shall cease to accrue on that portion of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank (i) as specified in the second sentence of the definition thereof.
, and (dii) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require extent such Defaulting Bank makes such purchases and/or Loans and/or accepts such L/C Obligations as are required to assign make the Pro Rata Adjusted Share of each Bank of the Effective Amount, after giving effect to all right, title such purchases and interest that it may have in all new Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents amounts received by any Bank pursuant to another Bank (if another Bank will consent to purchase such rightSection 2.10(a)(i), title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Advance Share of such Effective Amount; provided that if there is more than one Defaulting Bank at such time, the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent (x) the sum of all of the Effective Amounts Advance Share of the Non-Defaulting Banks plus such (including any Defaulting Bank’s Pro Rata Share Bank that after giving effect to the required purchases of the Loans and acceptances of L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving CommitmentObligations, (y) any Non-would cease to be a Defaulting Bank’s Effective Amount plus ) shall be calculated using the aggregate Committed Line Portions of only such Non-Defaulting Bank’s Revolving Banks in the denominators of the Pro Rata Adjusted Percentage Advance Share calculation (in lieu of such the Committed Line Portions of all Banks). Each Bank agrees to sell to the Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed , such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
Effective Amounts as may be required to effect clause (ii) if above. 3rd A&R Credit Agreement [Enserco] 011038.0122\517034.09
(c) A Defaulting Bank that is a Swap Bank which has closed out Swap Contracts with the reallocation described in clause (i) above cannot, or can Borrower after it has become a Defaulting Bank shall only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share entitled to sharing of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation amounts pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Intercreditor Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless Swap Contracts closed out after it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which become a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of notwithstanding any Loans, or reimbursement obligations owed to, any Defaulting Bank.
(h) In the event that the Agent, the Co-Borrowers, the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything provision to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”.
Appears in 1 contract
Defaulting Bank. Notwithstanding any other provision in of this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees under Section 2.11 shall cease to accrue on that portion of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank as specified in the definition thereof.
(d) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only deemed to the extent (x) the sum of have assigned any and all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitmentpayments due to it from each Borrower, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principaloutstanding Loans, interestinterest or otherwise in respect of such Borrower in each case arising under this Agreement or the Loan Documents, fees or otherwise) shall, in lieu of being distributed to such the Administrative Agent and the remaining non-Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied Banks for application as follows:
(i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, hereunder in respect of such Borrower,
(ii) second, pro rata, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, Lenders hereunder in respect of such Borrower,
(iii) third, to the funding of cash collateralization any Loan in respect of any participating interest in any Letter of Credit or Swing Line Loan such Borrower in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), ,
(iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank Administrative Agent and the Co-Borrowersapplicable Borrower, held in such a non-interest bearing account as cash collateral for future funding obligations of any the Defaulting Bank under this Agreement, Agreement in respect of such Borrower,
(v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers such Borrower or the non-Defaulting Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers such Borrower or any Bank Banks against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and in respect of such Borrower, and
(vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction.
(b) The Commitment Percentage of such Defaulting Bank shall not be included in determining whether the Required Banks have taken or may take any action hereunder (including any consent to any amendment, provided that if waiver or other modification pursuant to Section 8.5); provided, (i) such payment is a prepayment of Defaulting Bank’s Commitment may not be increased or extended without its consent and (ii) the principal amount of, or interest payable on, Loans may not be reduced or excused or the final date of payment of any Loans principal or reimbursement obligations in respect of L/C Advances or Swing Line Loans interest may not be postponed as to such Defaulting Bank without such Defaulting Bank’s consent.
(c) No Defaulting Bank shall be entitled to receive any commitment fee for any period during which that Bank is a Defaulting Bank has funded in accordance with its participation obligations, such payment (and no Borrower shall be applied solely required to prepay pay any such fee that otherwise would have been paid to the Loans of, and reimbursement obligations owed to, Defaulting Bank).
(d) If any Swing Line Advances are outstanding to any Borrower at the time such Bank becomes a Defaulting Bank then:
(i) all or any part of the outstanding Swing Line Advances shall be reallocated among the non-Defaulting Banks pro rata prior in accordance with their respective Commitment Percentages, provided that no Bank shall be required to being applied lend in excess of its Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable Borrower shall within three (3) Business Days following notice by the Administrative Agent without prejudice to the prepayment any right or remedy available to such applicable Borrower hereunder and under applicable law, prepay such outstanding Swing Line Advances made to such Borrower; and
(iii) subject to Section 8.14, no reallocation hereunder shall constitute a waiver or release of any Loans, or reimbursement obligations owed to, claim of any party hereunder against a Defaulting Bank arising from that Bank having become a Defaulting Bank, including any claim of a non-Defaulting Bank as a result of such non-Defaulting Bank’s increased exposure following such reallocation.
(he) So long as such Bank is a Defaulting Bank, no Swing Line Lender shall be required to fund any Swing Line Advance, unless, in each case, it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks, and participating interests in any newly made Swing Line Advance shall be allocated among non-Defaulting Banks in a manner consistent with Section 7.9(d)(i) (and such Defaulting Bank shall not participate therein). In the event that the Administrative Agent, the Co-Borrowers, the Issuing Bank Borrowers and the Swing Line Bank Lenders each agree agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and outstanding Swing Line Loans Advances of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into Commitment Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by a Swap or on behalf of the Borrowers while that Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything ; and provided, further, that except to the contrary hereinextent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Bank will constitute a waiver or release of any claim of any party hereunder arising from that Bank’s having been a Defaulting Bank. Should the Administrative Agent be a Defaulting Bank, the Revolving Commitment Required Banks shall have the right to appoint a successor Administrative Agent with the prior written consent of such Defaulting Bank the Borrowers, which consent shall not be included for purposes of determining the “Majority Banks”unreasonably withheld or delayed.
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Sources: Credit Agreement (BlackRock Variable Series Funds II, Inc.)
Defaulting Bank. Notwithstanding any other provision in of this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees under Section 2.11 shall cease to accrue on that portion of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank as specified in the definition thereof.
(d) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only deemed to the extent (x) the sum of have assigned any and all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitmentpayments due to it from each Borrower, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principaloutstanding Loans, interestinterest or otherwise in respect of such Borrower in each case arising under this Agreement or the Loan Documents, fees or otherwise) shall, in lieu of being distributed to such the Administrative Agent and the remaining non-Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied Banks for application as follows:
(i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, hereunder in respect of such Borrower,
(ii) second, pro rata, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, Lenders hereunder in respect of such Borrower,
(iii) third, to the funding of cash collateralization any Loan in respect of any participating interest in any Letter of Credit or Swing Line Loan such Borrower in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), ,
(iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank Administrative Agent and the Co-Borrowersapplicable Borrower, held in such a non-interest bearing account as cash collateral for future funding obligations of any the Defaulting Bank under this Agreement, Agreement in respect of such Borrower,
(v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers such Borrower or the non-Defaulting Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers such Borrower or any Bank Banks against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and in respect of such Borrower, and
(vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction.
(b) The Commitment Percentage of such Defaulting Bank shall not be included in determining whether the Required Banks have taken or may take any action hereunder (including any consent to any amendment, provided that if waiver or other modification pursuant to Section 8.5); provided, (i) such payment is a prepayment of Defaulting Bank’s Commitment may not be increased or extended without its consent and (ii) the principal amount of, or interest payable on, Loans may not be reduced or excused or the final date of payment of any Loans principal or reimbursement obligations in respect of L/C Advances or Swing Line Loans interest may not be postponed as to such Defaulting Bank without such Defaulting Bank’s consent.
(c) No Defaulting Bank shall be entitled to receive any commitment fee for any period during which that Bank is a Defaulting Bank has funded in accordance with its participation obligations, such payment (and no Borrower shall be applied solely required to prepay pay any such fee that otherwise would have been paid to the Loans of, and reimbursement obligations owed to, Defaulting Bank).
(d) If any Swing Line Advances are outstanding to any Borrower at the time such Bank becomes a Defaulting Bank then:
(i) all or any part of the outstanding Swing Line Advances shall be reallocated among the non-Defaulting Banks pro rata prior in accordance with their respective Commitment Percentages, provided that no Bank shall be required to being applied to lend in excess of its Commitment, and provided, further, that (a) any Tranche A Swing Line Advances shall only be reallocated among the prepayment of Tranche A Banks and (b) any Loans, or reimbursement obligations owed to, any Defaulting BankTranche B Swing Line Advances shall only be reallocated among the Tranche B Banks.
(hii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable Borrower shall within three (3) Business Days following notice by the Administrative Agent without prejudice to any right or remedy available to such applicable Borrower hereunder and under applicable law, prepay such outstanding Swing Line Advances made to such Borrower; and
(iii) subject to Section 8.14, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Bank arising from that Bank having become a Defaulting Bank, including any claim of a non-Defaulting Bank as a result of such non-Defaulting Bank’s increased exposure following such reallocation.
(e) So long as such Bank is a Defaulting Bank, no Tranche A Swing Line Lender (if such Bank is a Tranche A Bank) and no Tranche B Swing Line Lender (if such Bank is a Tranche B Bank) shall be required to fund any Swing Line Advance, unless, in each case, it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks, and participating interests in any newly made Swing Line Advance shall be allocated among non-Defaulting Banks in a manner consistent with Section 7.5(d)(i) (and such Defaulting Bank shall not participate therein). In the event that the Administrative Agent, the Co-Borrowers, the Issuing Bank Borrowers and the Swing Line Bank Lenders each agree agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and outstanding Swing Line Loans Advances of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into Commitment Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by a Swap or on behalf of any Borrower while that Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything ; and provided, further, that except to the contrary hereinextent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Bank will constitute a waiver or release of any claim of any party hereunder arising from that Bank’s having been a Defaulting Bank. Should the Administrative Agent be a Defaulting Bank, the Revolving Commitment Required Banks shall have the right to appoint a successor Administrative Agent with the prior written consent of such Defaulting Bank the Borrowers, which consent shall not be included for purposes of determining the “Majority Banks”unreasonably withheld or delayed.
Appears in 1 contract
Defaulting Bank. Notwithstanding Subject to §5.14, any other provision Bank that (a) has failed to (i) perform all or any portion of its funding obligations hereunder, including in this Agreement respect of Loans or participations in respect of Letters of Credit or Swing Line Loans within three Business Days of the date required to be funded by it hereunder unless such Bank notifies the contraryAdministrative Agent and the Borrower in writing that such failure is the result of such Bank’s determination that one or more conditions precedent to funding (each of which conditions precedent, if at together with any time a Bank becomes a Defaulting applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Administrative Agent, any Issuing Bank, the following provisions shall apply so long as Swing Line Bank or any other Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases any other amount required to be a Bank under this Agreement, paid by it will retain its Revolving Commitment and will remain subject to all hereunder (including in respect of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate participation in Letters of Credit or Swing Line Loans in accordance with Loans) within three Business Days of the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
date when due, (b) The Fees has notified the Borrower, the Administrative Agent or any Bank that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under Section 2.11 shall cease other agreements generally in which it commits to accrue on that portion of extend credit (unless such Defaulting writing or public statement relates to such Bank’s Revolving Commitment obligation to fund a Loan hereunder and states that remains unfunded such position is based on such Bank’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or which has public statement) cannot been included in any L/C Obligations;
be satisfied), (c) A Defaulting has failed, within three Business Days after request by the Administrative Agent, to confirm in writing to the Administrative Agent that it will comply with its funding obligations (provided that such Bank may shall cease to be a Defaulting Bank as specified in pursuant to this clause (c) upon receipt of such written confirmation by the definition thereof.
Administrative Agent), or (d) At has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any time during bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, (ii) had a Default Periodreceiver, Agent may and upon conservator, trustee, administrator, assignee for the direction benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Bank shall not be a Defaulting Bank solely by virtue of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting ownership or acquisition of any equity interest in that Bank (or any direct or indirect parent company thereof by a governmental agency so long as such Default Period remains ownership interest does not result in effect at or provide such Bank with immunity from the end jurisdiction of courts within the United States or from enforcement of judgments or writs of attachment on its assets or permit such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent or governmental agency) to purchase reject, repudiate, disavow or disaffirm any contracts or agreements made with such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found Bank. Any determination by the Co-Borrowers, for Administrative Agent that a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent (x) the sum of all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitment, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting BankBank under clauses (a) through (d) above shall be conclusive and binding absent manifest error, the Issuing and such Bank shall not be required deemed to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by a Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements §5.14) upon delivery of law, be applied (i) first, written notice of such determination to the payment of any amounts owing by such Defaulting Bank to the Agent hereunderBorrower, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the each Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting each Bank.
(h) In the event that the Agent, the Co-Borrowers, the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”.
Appears in 1 contract
Defaulting Bank. Notwithstanding any other provision in this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, the following provisions shall apply so long as any Bank is a Defaulting Bank:.
(a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Revolving Commitment Committed Line Portion and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings Loans and participate in Swing Line Loans Letters of Credit in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted PercentageShares.
(b) The Fees under Section 2.11 shall cease to accrue on that portion of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank (i) as specified in the second sentence of the definition thereof.
, and (dii) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require extent such Defaulting Bank makes such purchases and/or Loans and/or accepts such L/C Obligations as are required to assign make the Pro Rata Adjusted Share of each Bank of the Effective Amount, after giving effect to all right, title such purchases and interest that it may have in all new Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents amounts received by any Bank pursuant to another Bank (if another Bank will consent to purchase such rightSection 2.10(a)(i), title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Advance Share of such Effective Amount; provided that if there is more than one Defaulting Bank at such time, the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent (x) the sum of all of the Effective Amounts Advance Share of the Non-Defaulting Banks plus such (including any Defaulting Bank’s Pro Rata Share Bank that after giving effect to the required purchases of the Loans and acceptances of L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving CommitmentObligations, (y) any Non-would cease to be a Defaulting Bank’s Effective Amount plus ) shall be calculated using the aggregate Committed Line Portions of only such Non-Defaulting Bank’s Revolving Banks in the denominators of the Pro Rata Adjusted Percentage Advance Share calculation (in lieu of such the Committed Line Portions of all Banks). Each Bank agrees to sell to the Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed , such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
Effective Amounts as may be required to effect clause (ii) if above.
(c) A Defaulting Bank that is a Swap Bank which has closed out Swap Contracts with the reallocation described in clause (i) above cannot, or can Borrower after it has become a Defaulting Bank shall only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share entitled to sharing of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation amounts pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Intercreditor Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless Swap Contracts closed out after it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which become a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of notwithstanding any Loans, or reimbursement obligations owed to, any Defaulting Bank.
(h) In the event that the Agent, the Co-Borrowers, the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything provision to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”.
Appears in 1 contract
Defaulting Bank. Notwithstanding any other provision in this Agreement Subject to the contrarySection 2.13.2, if at any time a Bank becomes a Defaulting Bank, the following provisions shall apply so long as any Bank is a Defaulting Bank:
that, as reasonably determined by the Administrative Agent, (a) Until such time as has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Swing Loans, within three Business Days of the Defaulting Bank ceases date required to be a Bank under this Agreement, funded by it will retain its Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees has notified either Borrower, or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder or has made a public statement to that effect with respect to its funding obligations hereunder or generally under Section 2.11 shall cease other agreements in which it commits to accrue on that portion of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
extend credit, (c) A Defaulting has failed, within three Business Days after request by the Administrative Agent acting in good faith, to confirm in a manner reasonably satisfactory to the Administrative Agent that it will comply with its funding obligations hereunder, provided that such Bank may shall cease to be a Defaulting Bank as specified in upon receipt of such confirmation by the definition thereof.
Administrative Agent, or (d) At has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any time during debtor relief law, (ii) had a Default Periodreceiver, Agent may and upon conservator, trustee, administrator, assignee for the direction benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Bank shall not be a Defaulting Bank solely by virtue of the Majority Banks shallownership or acquisition of any equity interest in that Bank or any direct or indirect parent company thereof by a Government Authority, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and ownership interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent (x) the sum of all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitment, (y) any Non-Defaulting Bank’s Effective Amount plus result in or provide such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank.
(h) In the event that the Agent, the Co-Borrowers, the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into by a Swap Bank shall benefit immunity from the security package provided by jurisdiction of courts within the Security Documents, if at United States or from the time enforcement of judgments or writs of attachment on its assets or permit such Swap Contract was entered, such Swap Bank (or its Affiliatesuch governmental authority or instrumentality) was a Defaulting Bankto reject, repudiate, disavow or disaffirm any contracts or agreements made with such Person.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”.
Appears in 1 contract
Sources: Revolving Credit Agreement (Alliancebernstein L.P.)
Defaulting Bank. Notwithstanding any other provision in this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, the following provisions shall apply so long as any Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Working Capital Commitment and Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Working Capital Pro Rata Adjusted Percentage.
(b) The Fees under Section 2.11 shall cease to accrue on that portion of such Defaulting Bank’s Working Capital Commitment and Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank as specified in the definition thereof.
(d) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Working Capital Pro Rata Adjusted Percentage but only to the extent (x) the sum of all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Working Capital Commitment, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Working Capital Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Working Capital Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Working Capital Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank.
(h) In the event that the Agent, the Co-Borrowers, the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”.two
Appears in 1 contract
Sources: Amendment No. 4 (Spark Energy, Inc.)
Defaulting Bank. Notwithstanding any other provision in of this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees under Section 2.11 shall cease to accrue on that portion of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank as specified in the definition thereof.
(d) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only deemed to the extent (x) the sum of have assigned any and all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitmentpayments due to it from each Borrower, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principaloutstanding Loans, interestinterest or otherwise in respect of such Borrower in each case arising under this Agreement or the Loan Documents, fees or otherwise) shall, in lieu of being distributed to such the Administrative Agent and the remaining non-Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied Banks for application as follows:
(i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, hereunder in respect of such Borrower,
(ii) second, pro rata, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, Lenders hereunder in respect of such Borrower,
(iii) third, to the funding of cash collateralization any Loan in respect of any participating interest in any Letter of Credit or Swing Line Loan such Borrower in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), ,
(iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank Administrative Agent and the Co-Borrowersapplicable Borrower, held in such a non-interest bearing account as cash collateral for future funding obligations of any the Defaulting Bank under this Agreement, Agreement in respect of such Borrower,
(v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers such Borrower or the non-Defaulting Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers such Borrower or any Bank Banks against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and in respect of such Borrower, and
(vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction.
(b) The Commitment Percentage of such Defaulting Bank shall not be included in determining whether the Required Banks have taken or may take any action hereunder (including any consent to any amendment, provided that if waiver or other modification pursuant to Section 8.5); provided, (i) such payment is a prepayment of Defaulting Bank’s Commitment may not be increased or extended without its consent and (ii) the principal amount of, or interest payable on, Loans may not be reduced or excused or the final date of payment of any Loans principal or reimbursement obligations in respect of L/C Advances or Swing Line Loans interest may not be postponed as to such Defaulting Bank without such Defaulting Bank’s consent.
(c) No Defaulting Bank shall be entitled to receive any commitment fee for any period during which that Bank is a Defaulting Bank has funded in accordance with its participation obligations, such payment (and no Borrower shall be applied solely required to prepay pay any such fee that otherwise would have been paid to the Loans of, and reimbursement obligations owed to, Defaulting Bank).
(d) If any Swing Line Advances are outstanding to any Borrower at the time such Bank becomes a Defaulting Bank then:
(i) all or any part of the outstanding Swing Line Advances shall be reallocated among the non-Defaulting Banks pro rata prior in accordance with their respective Commitment Percentages, provided that no Bank shall be required to being applied lend in excess of its Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable Borrower shall within three (3) Business Days following notice by the Administrative Agent without prejudice to the prepayment any right or remedy available to such applicable Borrower hereunder and under applicable law, prepay such outstanding Swing Line Advances made to such Borrower; and
(iii) subject to Section 8.14, no reallocation hereunder shall constitute a waiver or release of any Loans, or reimbursement obligations owed to, claim of any party hereunder against a Defaulting Bank arising from that Bank having become a Defaulting Bank, including any claim of a non-Defaulting Bank as a result of such non-Defaulting Bank’s increased exposure following such reallocation.
(he) So long as such Bank is a Defaulting Bank, no Swing Line Lender shall be required to fund any Swing Line Advance, unless, in each case, it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks, and participating interests in any newly made Swing Line Advance shall be allocated among non-Defaulting Banks in a manner consistent with Section 7.10(d)(i) (and such Defaulting Bank shall not participate therein).
(f) If a Bankruptcy Event or a Bail-In Action with respect to a Bank Parent shall occur following the date hereof and for so long as such event shall continue, the Swing Line Lender shall not be required to fund any Swing Line Advance, unless the Swing Line Lender shall have entered into arrangements with the applicable Borrower or such Bank, satisfactory to the Swing Line Lender to defease any risk to it in respect of such Bank hereunder.
(g) In the event that the Administrative Agent, the Co-Borrowers, the Issuing Bank Borrowers and the Swing Line Bank Lenders each agree agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and outstanding Swing Line Loans Advances of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not Commitment Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Bank will constitute a waiver or release of any claim of any party hereunder arising from that Bank’s having been a Defaulting Bank.
(ih) No Swap Contract entered into by a Swap Bank shall benefit from Should the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was Administrative Agent be a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment Required Banks shall have the right to appoint a successor Administrative Agent with the prior written consent of such Defaulting Bank the Borrowers, which consent shall not be included for purposes of determining the “Majority Banks”unreasonably withheld or delayed.
Appears in 1 contract
Defaulting Bank. Notwithstanding any other provision in this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, the following provisions shall apply so long as any Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees under Section 2.11 shall cease to accrue on that portion of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank as specified in the definition thereof.
(d) At any time during a Default Period, the Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee another financial institution in accordance with Section 10.07 of this Agreement, if such Eligible Assignee financial institution can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent (x) the sum of all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving CommitmentCommitments, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage Share of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e2.17(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank.
(h) In the event that the Agent, the Co-Borrowers, the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”.2.17
Appears in 1 contract
Defaulting Bank. Notwithstanding any other provision in this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, the following provisions shall apply so long as any Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees under Section 2.11 shall cease to accrue on that portion of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank as specified in the definition thereof.
(d) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent (x) the sum of all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitment, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line LoansCredit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, Agent or the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank.
(h) In the event that the Agent, the Co-Borrowers, Borrowers and the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks.”.
Appears in 1 contract
Defaulting Bank. Notwithstanding any other provision in of this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
: (a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees under Section 2.11 fees shall cease to accrue on that the unfunded portion of the Revolving Commitment of such Defaulting Bank’s Revolving Bank pursuant to Section 2.8(a); (b) the Commitment that remains unfunded or which has and Loans of such Defaulting Bank shall not been be included in determining whether the Required Banks or Super Majority Banks have taken or may take any L/C Obligations;
action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.5); provided, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank affected thereby; (c) A the Borrower may, at its sole expense and effort, upon notice to such Defaulting Bank may cease to be a Defaulting Bank as specified in and the definition thereof.
(d) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period)Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.6), all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers its Available Commitments under this Agreement to an assignee that shall assume such obligations (which assignee may be another Bank, if a Bank accepts such assignment); provided that the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld; provided further that nothing contained in this clause (c) shall affect the obligations due to such Defaulting Bank; and (d) the Loan Documents to another Bank Administrative Agent may, in its sole discretion (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 notwithstanding any contrary provision of this Agreement), if such Eligible Assignee can be found apply any amounts thereafter received by it from any Covered Party for the Co-Borrowers, for a purchase price equal to 100% account of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of satisfy such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent (x) the sum of obligations hereunder until all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitment, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement unsatisfied obligations are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank.
(h) fully paid. In the event that the Agent, the Co-Borrowers, the Issuing Bank Administrative Agent and the Swing Line Bank Borrower each agree agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting BankShare.
(i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”.
Appears in 1 contract
Sources: Credit Agreement (Istar Inc.)
Defaulting Bank. Notwithstanding any other provision in of this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees under Section 2.11 shall cease to accrue on that portion of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank as specified in the definition thereof.
(d) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only deemed to the extent (x) the sum of have assigned any and all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitmentpayments due to it from each Borrower, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principaloutstanding Loans, interestinterest or otherwise in respect of such Borrower in each case arising under this Agreement or the Loan Documents, fees or otherwise) shall, in lieu of being distributed to such the Administrative Agent and the remaining non-Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied Banks for application as follows:
(i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, hereunder in respect of such Borrower,
(ii) second, pro rata, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, Lenders hereunder in respect of such Borrower,
(iii) third, to the funding of cash collateralization any Loan in respect of any participating interest in any Letter of Credit or Swing Line Loan such Borrower in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), ,
(iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank Administrative Agent and the Co-Borrowersapplicable Borrower, held in such a non-interest bearing account as cash collateral for future funding obligations of any the Defaulting Bank under this Agreement, Agreement in respect of such Borrower,
(v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers such Borrower or the non-Defaulting Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers such Borrower or any Bank Banks against such Defaulting Bank as a result of such Defaulting Bank’s 's breach of its obligations under this Agreement and in respect of such Borrower, and
(vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction. ACTIVE 255598135
(b) The Commitment Percentage of such Defaulting Bank shall not be included in determining whether the Required Banks have taken or may take any action hereunder (including any consent to any amendment, provided that if waiver or other modification pursuant to Section 8.5); provided,
(i) such payment is a prepayment of Defaulting Bank's Commitment may not be increased or extended without its consent and
(ii) the principal amount of, or interest payable on, Loans may not be reduced or excused or the final date of payment of any Loans principal or reimbursement obligations in respect of L/C Advances or Swing Line Loans interest may not be postponed as to such Defaulting Bank without such Defaulting Bank's consent.
(c) No Defaulting Bank shall be entitled to receive any commitment fee for any period during which that Bank is a Defaulting Bank has funded in accordance with its participation obligations, such payment (and no Borrower shall be applied solely required to prepay pay any such fee that otherwise would have been paid to the Loans of, and reimbursement obligations owed to, Defaulting Bank).
(d) If any Swing Line Advances are outstanding to any Borrower at the time such Bank becomes a Defaulting Bank then:
(i) all or any part of the outstanding Swing Line Advances shall be reallocated among the non-Defaulting Banks pro rata prior in accordance with their respective Commitment Percentages, provided that no Bank shall be required to being applied lend in excess of its Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, each applicable Borrower shall within three (3) Business Days following notice by the Administrative Agent without prejudice to the prepayment any right or remedy available to such applicable Borrower hereunder and under applicable law, prepay such outstanding Swing Line Advances made to such Borrower; and
(iii) subject to Section 8.14, no reallocation hereunder shall constitute a waiver or release of any Loans, or reimbursement obligations owed to, claim of any party hereunder against a Defaulting Bank arising from that Bank having become a Defaulting Bank, including any claim of a non-Defaulting Bank as a result of such non-Defaulting Bank's increased exposure following such reallocation.
(he) So long as such Bank is a Defaulting Bank, no Swing Line Lender shall be required to fund any Swing Line Advance, unless, in each case, it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks, and participating interests in any newly made Swing Line Advance shall be allocated among non-Defaulting Banks in a manner consistent with Section 7.10(d)(i) (and such Defaulting Bank shall not participate therein). In the event that the Administrative Agent, the Co-Borrowers, the Issuing Bank Borrowers and the Swing Line Bank Lenders each agree agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and outstanding Swing Line Loans Advances of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving 's Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not Commitment Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Bank will constitute a waiver or release of any claim of any party hereunder arising from that Bank's having been a Defaulting Bank.
(i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”.
Appears in 1 contract
Sources: Credit Agreement (BlackRock Variable Series Funds II, Inc.)
Defaulting Bank. Notwithstanding any other provision in this Agreement Subject to the contrarySection 2.13.2, if at any time a Bank becomes a Defaulting Bank, the following provisions shall apply so long as any Bank is a Defaulting Bank:
that, as reasonably determined by the Administrative Agent, (a) Until such time as has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Swing Loans, within three Business Days of the Defaulting Bank ceases date required to be a Bank under this Agreement, funded by it will retain its Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed unless such Bank notifies the Administrative Agent and the applicable Borrower in writing that such Defaulting Bank will fail failure is the result of such Bank’s determination that one or more conditions precedent to satisfy funding (each of which conditions precedent, together with any funding obligation andapplicable default, accordinglyshall be specifically identified in such writing) has not been satisfied, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees has notified either Borrower or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder or has made a public statement to that effect with respect to its funding obligations hereunder or generally under Section 2.11 shall cease other agreements in which it commits to accrue on that portion of extend credit (unless such Defaulting writing or public statement relates to such Bank’s Revolving Commitment obligation to fund a Loan hereunder and states that remains unfunded such position is based on such Bank’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or which has public statement) cannot been included in any L/C Obligations;
be satisfied), (c) A Defaulting has failed, within three Business Days after request by the Administrative Agent acting in good faith, to confirm in a manner reasonably satisfactory to the Administrative Agent that it will comply with its funding obligations hereunder, provided that such Bank may shall cease to be a Defaulting Bank as specified in upon receipt of such confirmation by the definition thereof.
Administrative Agent, or (d) At has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any time during debtor relief law, (ii) had a Default Periodreceiver, Agent may and upon conservator, trustee, administrator, assignee for the direction benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment or (iv) become the subject of a Bail-In Action; provided that a Bank shall not be a Defaulting Bank solely by virtue of the Majority Banks shallownership or acquisition of any equity interest in that Bank or any direct or indirect parent company thereof by a Government Authority, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and ownership interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent (x) the sum of all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitment, (y) any Non-Defaulting Bank’s Effective Amount plus result in or provide such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank.
(h) In the event that the Agent, the Co-Borrowers, the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into by a Swap Bank shall benefit immunity from the security package provided by jurisdiction of courts within the Security Documents, if at United States or from the time enforcement of judgments or writs of attachment on its assets or permit such Swap Contract was entered, such Swap Bank (or its Affiliatesuch governmental authority or instrumentality) was a Defaulting Bankto reject, repudiate, disavow or disaffirm any contracts or agreements made with such Person.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”.
Appears in 1 contract
Sources: Revolving Credit Agreement (Alliancebernstein Holding L.P.)
Defaulting Bank. Notwithstanding any other provision in this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, the following provisions shall apply so long as any Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Working Capital Commitment and Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Working Capital Pro Rata Adjusted Percentage.
(b) The Fees under Section 2.11 shall cease to accrue on that portion of such Defaulting Bank’s Working Capital Commitment and Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank as specified in the definition thereof.
(d) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Working Capital Pro Rata Adjusted Percentage but only to the extent (x) the sum of all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Working Capital Commitment, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Working Capital Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Working Capital Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Working Capital Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e2.17(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i2.17(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line LoansCredit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Working Capital Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, Agent or the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii2.17(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank.
(h) In the event that the Agent, the Co-Borrowers, Borrowers and the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Working Capital Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Working Capital Commitment and Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks,” the “Revolving Majority Banks” or the “Working Capital Majority Banks.”.
Appears in 1 contract
Defaulting Bank. Notwithstanding any other provision in of this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees under Section 2.11 fees shall cease to accrue on that the unfunded portion of the Revolving Commitment of such Defaulting Bank’s Revolving Bank pursuant to Section 2.8(a);
(b) the Commitment that remains unfunded or which has and Loans of such Defaulting Bank shall not been be included in determining whether the Required Banks or Super Majority Banks have taken or may take any L/C Obligationsaction hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.5); provided, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank affected thereby;
(c) A the Borrower may, at its sole expense and effort, upon notice to such Defaulting Bank may cease to be a Defaulting Bank as specified in and the definition thereof.
(d) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period)Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.6), all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers its Available Commitments under this Agreement and to an assignee that shall assume such obligations (which assignee may be another Bank, if a Bank accepts such assignment); provided that the Loan Documents Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld; provided further that nothing contained in this clause (c) shall affect the obligations due to another Bank such Defaulting Bank; and
(if another Bank will consent to purchase such rightd) the Administrative Agent may, title and interest) or an Eligible Assignee in accordance with Section 10.07 its sole discretion (notwithstanding any contrary provision of this Agreement), if such Eligible Assignee can be found apply any amounts thereafter received by it from any Covered Party for the Co-Borrowers, for a purchase price equal to 100% account of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of satisfy such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent (x) the sum of obligations hereunder until all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitment, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement unsatisfied obligations are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank.
(h) fully paid. In the event that the Agent, the Co-Borrowers, the Issuing Bank Administrative Agent and the Swing Line Bank Borrower each agree agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank Lender to be a Defaulting BankLender, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting BankShare.
(i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”.
Appears in 1 contract
Defaulting Bank. Notwithstanding any other provision in (a) Remedies Against a Defaulting Bank. In addition to the rights and remedies that may be available to the Agent or the Borrowers under this Agreement to the contraryor applicable law, if at any time a Bank becomes is a Defaulting Bank such Defaulting Bank’s right to collect Revolving Commitment Fees or to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Required Banks, shall be suspended while such Bank remains a Defaulting Bank; provided, however, that the Commitments of such Bank may not be increased and the period of such Commitments may not be extended without such Bank’s consent. If a Bank is a Defaulting Bank because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrowers may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Bank on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Bank under this Agreement or any other Loan Document until such defaulted payment and related interest has been paid in full and such default no longer exists and (iii) to bring an action or suit against such Defaulting Bank in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Bank’s Loans shall not be paid to such Defaulting Bank and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Bank upon the default of such Defaulting Bank being cured.
(b) Purchase from Defaulting Bank. Any Bank that is not a Defaulting Bank shall have the right, but not the obligation, in its sole discretion, to acquire all of a Defaulting Bank’s Commitments. If more than one Bank exercises such right, each such Bank shall have the right to acquire such proportion of such Defaulting Bank’s Commitments on a pro rata basis. Upon any such purchase, the Defaulting Bank’s interest in its Loans and its rights hereunder (but not its liability in respect thereof or under the Loan Documents or this Agreement to the extent the same relate to the period prior to the effective date of the purchase) shall terminate on the date of purchase, and the Defaulting Bank shall promptly execute all documents reasonably requested to surrender and transfer such interest to the purchaser thereof subject to and in accordance with the requirements set forth in Section 9.6, including an Assignment in form acceptable to the Agent. The purchase price for the Commitments of a Defaulting Bank shall be equal to the amount of the principal balance of the Loans outstanding and owed by the Borrowers to the Defaulting Bank. The purchaser shall pay to the Defaulting Bank in Immediately Available Funds on the date of such purchase the principal of and accrued and unpaid interest and fees on the Loans made by such Defaulting Bank hereunder (it being understood that such accrued and unpaid interest and fees may be paid pro rata to the purchasing Bank and the Defaulting Bank by the Agent at a subsequent date upon receipt of payment of such amounts from the Borrowers). Prior to payment of such purchase price to a Defaulting Bank, the following provisions Agent shall apply so long as any Bank is a Defaulting Bank:
(a) Until against such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees under Section 2.11 shall cease to accrue on that portion of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank as specified in the definition thereof.
(d) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent (x) the sum of all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitment, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be amounts retained by the Agent in a segregated account and subject pursuant to any applicable requirements the last sentence of law, the immediately preceding subsection (a). The Defaulting Bank shall be applied (i) firstentitled to receive amounts owed to it by the Borrowers under the Loan Documents which accrued prior to the date of the default by the Defaulting Bank, to the payment of any amounts owing extent the same are received by such Defaulting Bank to the Agent hereunder, (ii) second, to from or on behalf of the Borrowers. There shall be no recourse against any Bank or the Agent for the payment of any amounts owing by such Defaulting Bank sums except to the Issuing Banks and extent of the Swing Line Bank hereunder, (iii) third, to the funding receipt of cash collateralization of payments from any participating interest in any Letter of Credit other party or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank.
(h) In the event that the Agent, the Co-Borrowers, the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”.
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Sources: Revolving Credit and Term Loan Agreement (Commercial Vehicle Group, Inc.)
Defaulting Bank. Notwithstanding any other provision in of this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Revolving Commitment and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees under Section 2.11 shall cease to accrue on that portion of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank as specified in the definition thereof.
(d) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent (x) the sum of all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitment, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise, and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 2.9, Section 2.10, Section 3.4 and Section 9.1), except excluding Subsection 2.1(e) and Section 9.6, shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied at such time or times as may be determined by the Agent (i) first, to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of any Advance under the Loan or the funding or cash collateralization of any participating interest in any Letter letter of Credit or Swing Line Loan credit in respect of which such Defaulting Bank has failed to fund its reimbursement portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank Agent and the Co-BorrowersBorrower, held in such account as cash collateral for future funding obligations of any the Defaulting Bank under this Agreement, (v) ), fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers Borrower or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers Borrower or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement Agreement, and (vi) ), sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, ; provided that if such payment is a prepayment of the principal amount of any Loans the Loan or is a reimbursement obligations payment in respect of L/C Advances or Swing Line Loans payments under any letter of credit in either case which a Defaulting Bank has not funded in accordance with its participation obligations, the Defaulting Bank shall be subordinated and such payment shall be applied solely to prepay the Loans of, Outstandings of (including the Advances of and the letter of credit reimbursement obligations owed to, ) all non-Defaulting Banks pro rata prior to before being applied to the prepayment of any Loans, Outstandings of (whether Advances by or letter of credit reimbursement obligations owed to) any Defaulting Bank, until all Advances and all letter of credit reimbursements of which the Defaulting Bank did not fund its portion are paid and the Loan is reduced to the level at which the Defaulting Bank had ceased to fund.
(b) Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Subsection 2.5(b). Further, a Borrowing Base redetermination fee under Subsection 2.5(e) shall cease to be owing to such Defaulting Bank. Letter of credit fees under Subsection 2.5(c) shall be handled as provided in Subsection 2.15(c).
(c) If any Letter of Credit Usage exists at the time a Bank becomes a Defaulting Bank, then, if the conditions set forth in Section 7.4 are satisfied at such time:
(i) The Letter of Credit Usage shall be reallocated among the non-Defaulting Banks, after disregarding the Defaulting Bank’s Commitment, in proportion with their respective Commitments, but only to the extent that the sum of all non-Defaulting Banks’ portions of funded Advances and Letter of Credit Usage does not exceed the total of all the non-Defaulting Banks’ portions of the Commitment Limit;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Agent cash collateralize such Defaulting Bank’s portion of the Letter of Credit Usage (after giving effect to any partial reallocation described in clause (i) above), with such cash to be held by the Agent as collateral for the payment of such letters of credit, for such long as such Letter of Credit Usage is outstanding;
(iii) If the Borrower cash collateralizes any portion of such Defaulting Bank’s Letter of Credit Usage pursuant to this Subsection 2.15(c), the Borrower shall not be required to pay any letter of credit fees to such Defaulting Bank pursuant to Subsection 2.1)(g) with respect to such Defaulting Bank’s portion of the Letter of Credit Usage during the period such Defaulting Bank’s portion of the Letter of Credit Usage is cash collateralized, and further the Agent and the Borrower may determine under Subsection 2.15(a) to release monies deposited by Borrower in so cash collateralizing to the extent replaced by funds payable to the Defaulting Bank;
(iv) If the reallocation described in clause (i) above is made, then the letter of credit fees payable to the Banks pursuant to Subsection 2.1(g) shall be adjusted in accordance with such non-Defaulting Bank’s Commitments (disregarding any Defaulting Bank’s Commitment);
(v) If any Defaulting Bank’s portion of the Letter of Credit Usage is neither cash collateralized nor reallocated pursuant to this Subsection 2.15(c), then, without prejudice to any rights or remedies of the Issuing Bank or any Bank hereunder, the Issuing Bank shall instead be paid the letter of credit fees that would have been payable to the Defaulting Lender, and the Issuing Bank shall have the right to payments under Subsection 2.15(a)(ii) above; and
(vi) So long as any Bank is a Defaulting Bank, 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 Banks or cash collateral will be provided by the Borrower in accordance with this Subsection 2.15(c), and participating interests in any such newly issued or increased letter of credit shall be allocated among non-Defaulting Banks in a manner consistent with Subsection 2.15(c)(i) (and Defaulting Banks shall not participate therein).
(d) The Commitment of such Defaulting Bank shall not be included in determining whether all Banks or the Required Banks have voted or taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.4), provided that any waiver, amendment or modification requiring the consent of all Banks or each affected Bank in either case which affects such Defaulting Bank differently than other affected Banks, or an increase in the Commitment of such Defaulting Bank, shall require the consent of such Defaulting Bank.
(he) The Borrower, the Agent or any other Bank may, upon notice to such Defaulting Bank and the Agent, require such Defaulting Bank to sell all of its interests, rights and obligations under this Agreement and the Note held by it to another Bank or bank in accordance with and subject to the restrictions contained in Section 9.6 hereof, provided such a willing, qualified assignee is identified by the requesting party.
(f) In the event that the Agent, the Co-Borrowers, Borrower and the Issuing Bank and the Swing Line Bank each agree agrees that a Defaulting Bank has adequately remedied all matters that caused cause such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks Outstandings shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans Advances of the other Banks and participations in the letters of credit issued by the Issuing Bank as the Agent shall may determine may be necessary in order for such Bank to hold such Loans its portion of the Loan in accordance with its Pro Rata Share pro rata portion of its Commitment to the total Commitments.
1.9 Section 2.9 of the Loan Agreement is amended to add the following sentence at the end of such Section, such new sentence to read in its entirety as though it were not follows: Notwithstanding any provision of this Section 2.9 to the contrary, if any Bank becomes a Defaulting Bank.
(i) No Swap Contract entered into by a Swap Bank shall benefit from , then the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”.provisions of
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Defaulting Bank. Notwithstanding Subject to §2.16(b), any Bank that, as reasonably determined in good faith by the Administrative Agent and any other provision in this Agreement to the contraryapplicable Agent, if at any time a Bank becomes a Defaulting Bank, the following provisions shall apply so long as any Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases has failed to be a Bank under this Agreement, it will retain its Revolving Commitment and will remain subject to all perform any of its funding obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate including in Swing Line respect of its Loans or participations in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.
(b) The Fees under Section 2.11 shall cease to accrue on that portion respect of such Defaulting Bank’s Revolving Commitment that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank as specified in the definition thereof.
(d) At any time during a Default Period, Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee in accordance with Section 10.07 of this Agreement, if such Eligible Assignee can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent (x) the sum of all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving Commitment, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; and
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line Loans, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter Letters of Credit or Swing Line LoanLoans, as applicablewithin three Business Days of the date required to be funded by it hereunder, shall be allocated among (b) has notified any Borrower, or any Agent or any Bank that it does not intend to comply with its funding obligations hereunder or has made a public statement to that effect with respect to its funding obligations hereunder or has defaulted in fulfilling its obligation under other credit agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by the Non-Defaulting Banks applicable Agent, to confirm in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable reasonably satisfactory to such Defaulting Bank hereunder Agent that it will comply with its funding obligations, or (whether on account of principald) has, interestor has a direct or indirect parent company that controls it that has, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to become the payment subject of a proceeding under any amounts owing by such Defaulting Bank to the Agent hereunderDebtor Relief Law, (ii) secondhad a receiver, to conservator, trustee, administrator, assignee for the payment benefit of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereundercreditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iii) thirdtaken any action in furtherance of, to the funding or indicated its consent to, approval of cash collateralization of any participating interest or acquiescence in any Letter of Credit such proceeding or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, appointment; provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank.
(h) In the event that the Agent, the Co-Borrowers, the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.
(i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment of such Defaulting Bank shall not be included for a Defaulting Bank solely by virtue of the ownership or acquisition of any equity interest in that Bank or any direct or indirect parent company thereof by a Governmental Authority or instrumentality thereof. Derivatives Obligations. With respect to any Person, all obligations of such Person in respect of any rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, total rate of return swap, credit default swap, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of the foregoing transactions) or any combination of the foregoing transactions. For purposes of determining §9.1 and §13.1(f) hereof, the “Majority Banks”aggregate amount” of any Derivatives Obligations at any time shall be the maximum amount of any termination or loss payment required to be paid by Ryder and/or its Subsidiaries if such Derivatives Obligations were, at the time of determination hereunder, to be terminated by reason of any event of default or early termination event thereunder, whether or not such event of default or early termination event has in fact occurred.
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Sources: Global Revolving Credit Agreement (Ryder System Inc)
Defaulting Bank. Notwithstanding any other provision in this Agreement to the contrary, if at any time a Bank becomes a Defaulting Bank, the following provisions shall apply so long as any Bank is a Defaulting Bank:
(a) Until such time as the Defaulting Bank ceases to be a Bank under this Agreement, it will retain its Revolving Commitment Commitments and will remain subject to all of its obligations as a Bank hereunder, although it will be presumed that such Defaulting Bank will fail to satisfy any funding obligation and, accordingly, all other Banks hereby agree to fund L/C Borrowings and participate in Swing Line Loans in accordance with the terms hereof and their respective Revolving Pro Rata Adjusted Percentage.. 4812-0911-1547, v. 7
(b) The Fees under Section 2.11 shall cease to accrue on that portion of such Defaulting Bank’s Revolving Commitment Commitments that remains unfunded or which has not been included in any L/C Obligations;
(c) A Defaulting Bank may cease to be a Defaulting Bank as specified in the definition thereof.
(d) At any time during a Default Period, the Agent may and upon the direction of the Majority Banks shall, upon three (3) Business Days prior notice to the applicable Defaulting Bank (so long as such Default Period remains in effect at the end of such notice period), require such Defaulting Bank to assign all right, title and interest that it may have in all Loans and any other Obligations of the Co-Borrowers under this Agreement and the Loan Documents to another Bank (if another Bank will consent to purchase such right, title and interest) or an Eligible Assignee another financial institution in accordance with Section 10.07 of this Agreement, if such Eligible Assignee financial institution can be found by the Co-Borrowers, for a purchase price equal to 100% of the principal amount of such Loans and any other Obligations plus the amount of any interest and fees accrued and owing to such Defaulting Bank as of the date of such assignment.
(e) with respect to any L/C Obligation or Swing Line Loan that exists at the time a Bank becomes a Defaulting Bank or thereafter:
(i) all or any part of such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Banks in accordance with their respective Revolving Pro Rata Adjusted Percentage but only to the extent (x) the sum of all of the Effective Amounts of the Non-Defaulting Banks plus such Defaulting Bank’s Pro Rata Share of the L/C Obligations and the outstanding Swing Line Loans does not exceed the Total Available Revolving CommitmentCommitments, (y) any Non-Defaulting Bank’s Effective Amount plus such Non-Defaulting Bank’s Revolving Pro Rata Adjusted Percentage of such Defaulting Bank’s Revolving Pro Rata Percentage Share of the L/C Obligations and outstanding Swing Line Loans does not exceed such Non-Defaulting Bank’s Revolving Commitment and (z) the conditions set forth in Section 5.02 of this Agreement are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially be effected, then the Co-Borrowers shall within two (2) Business Days following notice by the Agent Cash Collateralize such Defaulting Bank’s Pro Rata Share of the L/C Obligations and Swing Line Loans (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the terms of this Agreement, including without limitation Section 3.07, for so long as such L/C Obligation or Swing Line Loan, as applicable, is outstanding;
(iii) if the Co-Borrowers Cash Collateralize any portion of such Defaulting Bank’s Pro Rata Share of the L/C Obligations pursuant to this Section 2.16(e2.17(e) and Section 3.07 then the Co-Borrowers shall not be required to pay any fees for the pro rata benefit of such Defaulting Bank pursuant to Section 3.08 with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations during the period such Defaulting Bank’s Pro Rata Share of the L/C Obligations is Cash Collateralized; andand 4812-0911-1547, v. 7
(iv) if any Defaulting Bank’s Pro Rata Share of the L/C Obligations is neither cash collateralized nor reallocated pursuant to Section 2.16(e)(i2.17(e)(i), then, without prejudice to any rights or remedies of the Letter of Credit Issuer or any Bank hereunder, all letter of credit fees payable under this Agreement with respect to such Defaulting Bank’s Pro Rata Share of the L/C Obligations shall be payable to the Issuing Banks until such Pro Rata Share of the L/C Obligations is Cash Collateralized, reallocated, or repaid in full.
(f) So long as any Bank is a Defaulting Bank, the Issuing Bank Banks shall not be required to issue, amend or increase any Letter of Credit and the Swing Line Bank shall not be required to fund any Swing Line LoansCredit, unless it is satisfied that the related exposure will be 100% covered by the Revolving Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by Defaulting Bank or the Co-Borrowers in accordance with Section 3.07, if so required, and participating interests in any such newly issued or increased Letter of Credit or Swing Line Loan, as applicable, shall be allocated among the Non-Defaulting Banks in a manner consistent with Section 3.03 (and the Defaulting Banks shall not participate therein).
(g) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Agent in a segregated account and subject to any applicable requirements of law, be applied (i) first, to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks and the Swing Line Bank hereunder, (iii) third, to the funding of cash collateralization of any participating interest in any Letter of Credit or Swing Line Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, the Agent or applicable Issuing Bank or the Swing Line Bank with the amount so funded reducing the amount the Co-Borrowers were required to Cash Collateralize pursuant to Section 2.16(e)(ii2.17(e)(ii), (iv) fourth, if so determined by the Agent, the Issuing Bank, the Swing Line Bank and the Co-Borrowers, held in such account as cash collateral for future funding obligations of any Defaulting Bank under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Co-Borrowers or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers or any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement and (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if such payment is a prepayment of the principal amount of any Loans or reimbursement obligations in respect of L/C Advances or Swing Line Loans which a Defaulting Bank has funded in accordance with its participation obligations, such payment shall be applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Defaulting Banks pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank.
(h) In the event that the Agent, the Co-Borrowers, Borrowers and the Issuing Bank and the Swing Line Bank each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Pro Rata Share of the L/C Obligations and Swing Line Loans of the Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Pro Rata Share as though it were not a Defaulting Bank.. 4812-0911-1547, v. 7
(i) No Swap Contract entered into by a Swap Bank shall benefit from the security package provided by the Security Documents, if at the time such Swap Contract was entered, such Swap Bank (or its Affiliate) was a Defaulting Bank.
(j) Notwithstanding anything to the contrary herein, the Revolving Commitment Commitments of such Defaulting Bank shall not be included for purposes of determining the “Majority Banks”.
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