Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank: (a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees); (i) Any amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct. (ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank; (c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and (d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 28 contracts
Sources: Credit Agreement (Caterpillar Inc), Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Financial Services Corp)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such the Applicant shall not be required to pay any participation fees to such Defaulting Bank will pursuant to Section 2.6 with respect to such Defaulting Bank’s Commitment; provided that if such Defaulting Bank’s Commitment is not cash collateralized pursuant to Section 2.16(c), then, without prejudice to any rights or remedies of the Issuing Bank or any Bank hereunder, the participation fee payable under Section 2.6 with respect to such Defaulting Bank’s Commitment shall be payable to the Issuing Bank until such Commitment is cash collateralized pursuant to Section 2.15(c). For the avoidance of doubt, it is being understood that, the interest payable by the Applicant pursuant to Section 2.3 or Section 2.4 on LC Disbursements and Liquidity Advances shall continue to be payable to the applicable Banks, including the Defaulting Bank, to the extent the Defaulting Bank has funded its share of any such LC Disbursement or Liquidity Advance and would be entitled to such interest had it not become a Defaulting Bank;
(b) the Commitment of such Defaulting Bank shall not be included in determining whether the Required Banks have taken or may take any fees accruing during such period action hereunder (including any consent to any amendment or waiver pursuant to Section 2.04 9.9), other than any waiver, amendment or modification requiring the consent of all Banks or of each affected Bank;
(without prejudice c) the Applicant shall, within one Business Day following written notice from the Administrative Agent demanding the deposit of cash collateral pursuant to this Section 2.16, deposit in an account established by the rights Applicant with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Banks (the “Defaulting Bank Collateral Account”), an amount in cash which is, to the extent allowed by law, free and clear of all rights and claims of third parties equal to such Defaulting Bank’s Commitment for so long as such Commitment is outstanding; provided that (i) if at any time the Administrative Agent determines that the amount on deposit in the Defaulting Bank Collateral Account shall be less than such Defaulting Bank’s Commitment, the Administrative Agent may make demand on the Applicant to pay, and the Applicant will, within one Business Day after written notice from the Administrative Agent making such demand, pay to the Administrative Agent an amount equal to such deficiency, which funds shall be deposited in the Defaulting Bank Collateral Account, (ii) the Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such Defaulting Bank Collateral Account, (iii) other than Defaulting Banks in respect any interest earned on the investment of such feesdeposits, which investments shall be made at the option and sole discretion of the Administrative Agent, such deposits shall not bear interest and, subject to the provisions of this clause (c), interest or profits, if any, on such investments shall accumulate in such account, (iv) amounts held in the Defaulting Bank Collateral Account will be paid to the Issuing Bank from time to time as necessary to pay amounts owing to the Issuing Bank by the Defaulting Bank pursuant to Sections 2.2 and 2.5 hereof, (v) if the Applicant is required to provide an amount of cash collateral under this clause (c), such amount (to the extent not applied as aforesaid) shall be returned to the Applicant within three Business Days after a Defaulting Bank has been determined in accordance with the terms of this Section 2.16 to no longer be a Defaulting Bank or such Defaulting Bank has been replaced in accordance with Section 2.17 and (vi) amounts in such Defaulting Bank Collateral Account shall be repaid to the Applicant to the extent not required as collateral from time to time pursuant to the provisions of this clause (c);
(id) Any amount paid by to the Borrowers extent the Administrative Agent receives any payments or otherwise received by the Agent other amounts for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid deemed to have requested that the Administrative Agent use such payment or other amount to fulfill such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were Bank’s previously unsatisfied obligations to fund a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account Liquidity Advance or any other unfunded payment obligation of such Defaulting Bank under this Agreement (whether on account of principalSections 2.2, interest, fees, indemnity 2.5 or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank9.3(b) hereof; and
(de) for the avoidance of doubt, the Applicant shall retain and reserve its other rights and remedies respecting each Defaulting Bank. In the event that the Borrowers Administrative Agent, the Applicant and the Agent agree in writing in their discretion Issuing Bank each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as then this Section 2.16 shall no longer apply in respect of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a rehabilitated Defaulting Bank.
Appears in 8 contracts
Sources: Reimbursement Agreement (Agl Resources Inc), Reimbursement Agreement (Agl Resources Inc), Reimbursement Agreement (Agl Resources Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank that is a Defaulting Bank should no longer be deemed to be a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 8 contracts
Sources: Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Inc), Credit Agreement (Caterpillar Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d2.17(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b2.17(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b2.17(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 6 contracts
Sources: Credit Agreement (Caterpillar Inc), Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees2.5(a);
(ib) Any amount paid by the Borrowers Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or otherwise received by may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that this clause (b) shall not apply to the Agent for the account vote of a Defaulting Bank under in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank affected thereby;
(c) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only to the extent (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this Agreement other than clause (c), the Company shall not be required to pay any amounts representing principal fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or interest remedies of any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (whether on account solely with respect to the portion of fees, indemnity payments or other amounts not constituting principal or interestsuch Defaulting Bank’s Commitment that was utilized by such LC Obligations) will not be paid or distributed and LC Fees payable under Section 3.4 with respect to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination ’s Pro Rata Share of the Commitments and payment in full of all obligations of the Borrowers hereunder and will LC Obligations shall be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Borrowers Agent, the Company, and the Agent agree in writing in their discretion each LC Issuer each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify the parties hereto, whereupon as Banks’ Pro Rata Shares of the effective LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Loans of the other Banks and/or make such other adjustments as the Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Loans in accordance with their respective Commitmentsits Pro Rata Share of the Aggregate Commitment; provided, whereupon that if the Company cash collateralized any portion of such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf Pro Rata Share of the Borrowers while LC Obligations pursuant to Section 4.7(c), such Bank was a Defaulting Bank; and provided, further, that except cash shall be returned to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting BankCompany.
Appears in 5 contracts
Sources: Revolving Credit Agreement (Consumers Energy Co), Revolving Credit Agreement (CMS Energy Corp), Revolving Credit Agreement (CMS Energy Corp)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the Paying Agent shall deliver written notice to such effect, upon the Paying Agent’s obtaining knowledge of such event, to the Company and such Defaulting Bank, and the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Commitment Fees shall cease to accrue with respect to the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 2.4.
(without prejudice b) The Commitment and Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 9.1), provided that any waiver, amendment or modification requiring the rights consent of all Banks or each affected Bank which would increase or extend the term of the Banks other than Defaulting Banks in respect Commitment of such fees);Defaulting Bank or which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank.
(c) If any L/C Obligations exist at the time a Bank becomes a Defaulting Bank, then:
(i) Any amount paid all or any part of such L/C Obligations shall be reallocated among the non-Defaulting Banks ratably in accordance with their respective Commitments but only to the extent that (x) the sum of all non-Defaulting Banks’ Revolving Credit Exposures does not then exceed the total of all non-Defaulting Banks’ Commitments, (y) no non-Defaulting Bank’s Revolving Credit Exposure then exceeds such non-Defaulting Bank’s Commitments and (z) the conditions set forth in Section 4.3 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Borrowers or otherwise received by Paying Agent cash collateralize the Agent percentage such Defaulting Bank’s Commitment represents of the Total Commitment of the L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 7.2 for so long as such L/C Obligations are outstanding;
(iii) if the account Company cash collateralizes any portion of a such Defaulting Bank’s L/C Obligations pursuant to this Section 2.22(c), the Company shall not be required to pay any fees to such Defaulting Bank under pursuant to Section 3.3 with respect to such Defaulting Bank’s portion of the L/C Obligations during the period of such collateralization;
(iv) if the L/C Obligations of the non-Defaulting Banks are reallocated pursuant to this Agreement other than Section 2.22(c), then the fees payable to the Banks pursuant to Section 3.3 shall be adjusted ratably in accordance with their respective Commitments; and
(v) if any amounts representing principal Defaulting Bank’s L/C Obligations are neither cash collateralized nor reallocated pursuant to this Section 2.22(c), then, without prejudice to any rights or interest remedies of the applicable Issuing Bank or any Bank hereunder, all Commitment Fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such L/C Obligations) and letter of credit fees payable under Section 3.3 with respect to such Defaulting Bank’s L/C Obligations shall be payable to the applicable Issuing Bank until such L/C Obligations are cash collateralized and/or reallocated.
(d) So long as any Bank is a Defaulting Bank, no Issuing Bank shall 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 and/or cash collateral will be provided by the Company in accordance with Section 2.22(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 Section 2.22(c)(i) (and Defaulting Banks shall not participate therein).
(e) Any amount payable to such Defaulting Bank hereunder (whether on account of feesprincipal, indemnity payments interest, fees or other otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 2.16, but excluding amounts not constituting principal or interestpayable pursuant to Section 2.23) will not be paid or shall, in lieu of being distributed to such Defaulting Bank, but will instead subject to any applicable requirements of law, be retained applied at such time or times as may be determined by the Paying Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)i) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agentfirst, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Paying Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Bank to the Issuing Banks hereunder, (iii) third, if so determined by the Paying Agent or requested by an Issuing Bank, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any existing or future participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Paying Agent, (v) fifth, if so determined by the Paying Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any Loans under this Agreement, second (vi) sixth, to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Banks or an Issuing Bank as a result of any judgment of a court of competent jurisdiction obtained by any Bank or such Issuing Bank against such Defaulting Banks, ratably among them in accordance with the amounts Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement, third (vii) seventh, to the payment of fees then due and payable any amounts owing to the Non-Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting Banks hereunder, ratably among them in accordance with the amounts Bank as a result of such fees then due and payable to them, fourth to the ratable payment Defaulting Bank’s breach of other amounts then due and payable to the Non-Defaulting Banksits obligations under this Agreement, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder(viii) eighth, to pay amounts owing under this Agreement to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise direct.
jurisdiction, provided, with respect to this clause (iiviii), that if such payment is (x) Any a prepayment of the principal amount of any Loans or reimbursement obligations in respect of any drafts paid by the Borrowers for the account an Issuing Bank under any Letters of Credit which a Defaulting Bank representing principal or interest payable to has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.3 are satisfied, such Defaulting Bank payment shall be paid applied solely to such Defaulting Bank in prepay the same amounts Loans of, and in the same manner as if such Defaulting Bank were a Nonreimbursement obligations owed to, all non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ Banks pro rata prior notice to being applied to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release prepayment of any claim Loans, or reimbursement obligations owed to, any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) . In the event that the Borrowers Paying Agent, each Issuing Bank and the Agent agree in writing in their discretion Company each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, Bank or upon receipt by the Paying Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account confirmation referred to in Section 2.18(b))clause (c) of the definition of “Defaulting Bank”, as applicable, then on such date such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Loans of the other Banks and/or make such other adjustments as the Paying Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Loans ratably in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bankits Commitment.
Appears in 5 contracts
Sources: Revolving Credit Facility Agreement (Southwest Airlines Co), Revolving Credit Facility Agreement (Southwest Airlines Co), Revolving Credit Facility Agreement (Southwest Airlines Co)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long then, until such time as such Bank is no longer a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice , to the rights of the Banks other than Defaulting Banks in respect of such fees);extent permitted by applicable law:
(i) Such Defaulting Bank’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Banks and in Section 9.07.
(ii) Intentionally omitted.
(iii) Any amount paid by the Borrowers payment of principal, interest, fees or otherwise other amounts received by the Administrative Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesvoluntary or mandatory, indemnity payments at maturity, pursuant to Section 7 or other amounts not constituting principal otherwise) shall be applied at such time or interest) will not times as may be paid or distributed to such Defaulting Bank, but will instead be retained determined by the Administrative Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agentas follows: first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of such Defaulting Bank to fund Loans under this Agreement; fourth, second to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank against that Defaulting Banks, ratably among them in accordance with the amounts Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement; fifth, third so long as no Default exists, to the payment of fees then due and payable any amounts owing to the Non-Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Banks hereunder, ratably among them in accordance with the amounts Bank as a result of such fees then due and payable to them, fourth to the ratable payment Defaulting Bank’s breach of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all its obligations of the Borrowers hereunder, to pay amounts owing under this Agreement Agreement; and sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise directjurisdiction; provided that if (A) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Bank has not fully funded its appropriate share, and (B) such Loans were made at a time when the conditions set forth in Section 4.01 were satisfied or waived, such payment shall be applied solely to pay the Loans of all non-Defaulting Banks on a Pro Rata basis prior to being applied to the payment of any Loans of such Defaulting Bank. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank pursuant to this Section shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
(iib) Any amount paid by If the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers Borrower and the Administrative Agent agree in writing in their sole discretion that a Defaulting Bank is should no longer be deemed to be a Defaulting Bank, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b))therein, such that Bank will, to the extent applicable, purchase at par such that portion of outstanding Advances Loans of the other Banks and/or make or take such other adjustments actions as the Administrative Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks Loans to be held on a pro rata basis by the Banks in accordance with their respective CommitmentsPro Rata Shares (without giving effect to Section 2.21(a)(iii)), whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Borrower while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such that Bank’s having been a Defaulting Bank.
Appears in 5 contracts
Sources: Loan Agreement (Spire Missouri Inc), Loan Agreement (Spire Missouri Inc), Loan Agreement (Spire Missouri Inc)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(ab) Such fees shall cease to accrue on the Available Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such feessubsection 2.4(a);
(c) the Commitment and Loans of such Defaulting Bank shall not be included in determining whether all Banks, the Majority Banks or the Required Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to subsection 10.1); provided that any waiver, amendment or modification requiring the consent of all Banks or each affected Bank which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank; and
(d) if any L/C Obligations exist at the time a Bank becomes a Defaulting Bank then:
(i) Any amount paid all or any part of such L/C Obligations shall be reallocated among the non-Defaulting Banks in accordance with their respective Commitment Percentages but only to the extent the sum of all non-Defaulting Banks’ Loans plus non-Defaulting Banks’ L/C Obligations plus such Defaulting Bank’s Commitment Percentage of the L/C Obligations does not exceed the total of all non-Defaulting Banks’ Commitments and, in the case of each non-Defaulting Bank and after giving effect to such reallocation, the Loans and L/C Obligations of any such non-Defaulting Bank do not exceed such non-Defaulting Bank’s Commitment;
(ii) if (w) the reallocation described in clause (i) above cannot, or can only partially, be effected, then upon the written request of any Issuing Bank, the applicable Borrower shall deposit, within five Business Days after its receipt of such request, in a cash collateral account opened by the Borrowers or otherwise received Administrative Agent, cash in an amount requested in such notice, such amount not to exceed such Defaulting Bank’s Commitment Percentage of the L/C Obligations at the time of such request attributable to the Letters of Credit issued by the Agent such Issuing Bank for the account of such Borrower;
(iii) amounts deposited pursuant to clause (ii) above at the request of any Issuing Bank shall be applied by the Administrative Agent to reimburse such Issuing Bank for any participations required to be funded by such Defaulting Bank;
(iv) to the extent the Borrowers cash collateralize any portion of such Defaulting Bank’s L/C Obligations pursuant to clause (ii) above, the Borrowers shall not be required to pay any Letter of Credit fees pursuant to Section 2.26(c) to such Defaulting Bank with respect to such Defaulting Bank’s L/C Obligations during the period such Defaulting Bank’s L/C Obligations are cash collateralized;
(v) if such Defaulting Bank’s L/C Obligations are reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Banks shall be adjusted in accordance with such non-Defaulting Banks’ Commitment Percentages;
(e) so long as any Bank is a Defaulting Bank, no Issuing Bank under this Agreement other than shall be required to issue, amend or increase any amounts representing principal Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with Section 2.23(d), and participating interests in any such newly issued or interest increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.26(d)(i) (and Defaulting Banks shall not participate therein);
(f) any amount payable to such Defaulting Bank hereunder (whether on account of feesprincipal, indemnity payments interest, fees or other amounts not constituting principal or interestotherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to subsection 10.6 but excluding subsection 2.19) will not be paid or shall, in lieu of being distributed to such Defaulting Bank, but will instead be retained by the Administrative Agent in a segregated non-interest bearing account until (and, subject to Section 2.18(d)) the termination any applicable requirements of the Commitments and payment in full of all obligations of the Borrowers hereunder and will law, be applied at such time or times as may be determined by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first (i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, (ii) second, to payment of any amounts owing by such Defaulting Bank to an Issuing Bank, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Bank, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any existing or future participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement and (v) fifth, if so determined by the Administrative Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any Loans under this Agreement, second to the payment of post-default interest . The rights and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as remedies against a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or subsection 2.23 are in addition to other amounts), provided rights and remedies that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank Borrowers may have against such Defaulting Bank; and
(d) . In the event and on the date that the Borrowers Administrative Agent, the Company and the Agent Issuing Banks each agree in writing in their discretion that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify the parties hereto, whereupon as L/C Obligations of the effective Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Loans of the other Banks and/or make such (other adjustments than Competitive Loans) as the Administrative Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Loans in accordance with their respective Commitments, whereupon its Commitment Percentage and such Bank will cease to shall no longer be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 5 contracts
Sources: Credit Agreement (Deere John Capital Corp), Credit Agreement (Deere & Co), Credit Agreement (Deere John Capital Corp)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 3.1 hereof;
(without prejudice to b) if any Swing Line Loans shall be outstanding or any L/C Obligations shall exist at the rights of the Banks other than time a Bank becomes a Defaulting Banks in respect of such fees);Bank then:
(i) Any amount paid all or any part of the unfunded participations in and commitments with respect to such Swing Line Loans and L/C Obligations of such Defaulting Bank shall be reallocated among the Non-Defaulting Banks in accordance with their respective Percentages but only to the extent that no Default or Event of Default has occurred and is continuing, and that as a result thereof (x) the sum of all Non-Defaulting Banks’ outstanding Loans plus such Defaulting Bank’s L/C Obligations and Swing Line Loans would not exceed the Non-Defaulting Banks’ existing Commitments and (y) the sum of each Non-Defaulting Bank’s outstanding Loans plus such Non-Defaulting Bank’s share under this clause (i) of such Defaulting Bank’s L/C Obligations and Swing Line Loans would not exceed such Non-Defaulting Bank’s existing Commitment; and
(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 Borrowers Administrative Agent (x) first, prepay the outstanding Swing Line Loans that were not reallocated and (y) second, cash collateralize such Defaulting Bank’s L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth herein for so long as such L/C Obligations are outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Bank’s L/C Obligations pursuant to this Section 2.14(b), the Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 3.1 hereof with respect to such Defaulting Bank’s L/C Obligations during the period such Defaulting Bank’s L/C Obligations are cash collateralized; and
(iv) if the L/C Obligations of the Non-Defaulting Banks are reallocated pursuant to this Section 2.14(b), then the fees payable to the Banks pursuant to Section 3.1 hereof shall be adjusted to give effect to such reallocations in accordance with such Non-Defaulting Banks’ Percentages;
(c) so long as any Bank is a Defaulting Bank, no Issuing Agent shall be required to issue, amend or otherwise received increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Agent for Commitments of the account Non-Defaulting Banks (and/or cash collateralized in accordance with the terms hereof), 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 Section 2.14(b)(i) hereof (and Defaulting Bank under this Agreement other than Banks shall not participate therein); and
(d) any amounts representing principal or interest amount payable to such Defaulting Bank hereunder (whether on account of feesprincipal, indemnity payments interest, fees or other amounts not constituting principal or interestotherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to this Agreement) will not be paid or shall, in lieu of being distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination any applicable requirements of the Commitments and payment in full of all obligations of the Borrowers hereunder and will law, be applied by the Agent(i) first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent under this Agreementhereunder, second (ii) second, pro rata, to the payment of post-default interest and any amounts then current interest due and payable owing by such Defaulting Bank to any Issuing Agent or Swing Line Bank hereunder, (iii) third, in the event such Defaulting Bank’s L/C Obligations are cash collateralized under this Section 2.14 by the Borrower, then, if no Default or Event of Default then exists, to the Non-Defaulting Banks, ratably among them in accordance with the amounts Borrower as a return of its corresponding cash collateral deposits until all such interest then due and payable to them, third cash collateral has been returned to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting BanksBorrower, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder(iv) fourth, to pay amounts owing under this Agreement to such Defaulting Bank or Bank, or, in each case, as otherwise directed by a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) jurisdiction. In the event that the Borrowers Administrative Agent, the Borrower, the Swing Line Bank and the each Issuing Agent agree in writing in their discretion each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify the parties hereto, whereupon as Loans of the effective Banks shall be readjusted and reallocated to reflect the inclusion of such Bank’s Commitment and on such date specified such Bank shall purchase at par such of the Loans and participations in Letters of Credit and Swing Line Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such notice Bank to hold such Loans and subject participations in Letters of Credit and Swing Line Loans in accordance with its applicable Percentage after giving effect to any conditions such reallocation; provided, that, notwithstanding the foregoing, the Borrower must comply with all applicable terms hereof. Notwithstanding anything set forth therein (which may include arrangements herein to the contrary, a Defaulting Bank shall not have any voting or consent rights under or with respect to any amounts then Credit Documents or constitute a “Bank” for any voting or consent rights under or with respect to any Credit Document, in any matter requiring the consent of Required Banks. Moreover, for the purposes of determining Required Banks, the Loans and Commitments held in by Defaulting Banks shall be excluded from the segregated account referred to in Section 2.18(b))total Loans and Commitments outstanding. For purposes of clarification, such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis shall not lose its right to reflect the foregoing); provided that no adjustments will be made retroactively vote with respect to fees accrued or payments made by or on behalf matters set forth in clauses (i) and (ii) of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting BankSection 11.11 hereof.
Appears in 4 contracts
Sources: Credit Agreement (Black Hills Corp /Sd/), Credit Agreement (Black Hills Corp /Sd/), Credit Agreement (Black Hills Corp /Sd/)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long then, until such time as such Bank is no longer a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice , to the rights of the Banks other than Defaulting Banks in respect of such fees);extent permitted by applicable law:
(i) Such Defaulting Bank’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Banks and in Section 9.07.
(ii) Fees shall cease to accrue on such Defaulting Bank’s Pro Rata Share of the average daily Unutilized Revolving Credit Commitment pursuant to Section 2.07(a).
(iii) Any amount paid by the Borrowers payment of principal, interest, fees (other than any fees described in clause (ii) above) or otherwise other amounts received by the Administrative Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesvoluntary or mandatory, indemnity payments at maturity, pursuant to Section 7 or other amounts not constituting principal otherwise) shall be applied at such time or interest) will not times as may be paid or distributed to such Defaulting Bank, but will instead be retained determined by the Administrative Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agentas follows: first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to any Issuing Bank or the Swingline Bank hereunder; third, if so determined by the Administrative Agent or requested by any Issuing Bank or the Swingline Bank, to be held as Cash Collateral for future funding obligations of such Defaulting Bank in respect of any participation in any Letter of Credit or Swingline Loan; fourth, as any Borrower may request (so long as no Default or Event of Default exists with respect to such Borrower), to the funding of any Loan for such Borrower in respect of which that Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrowers, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of such Defaulting Bank to fund Loans under this Agreement; sixth, second to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Defaulting Banks, ratably among them in accordance with the amounts Issuing Banks or the Swingline Bank as a result of any judgment of a court of competent jurisdiction obtained by any Bank, any Issuing Bank or the Swingline Bank against that Defaulting Bank as a result of such interest then due and payable Defaulting Bank’s breach of its obligations under this Agreement; seventh, so long as no Default exists with respect to themsuch Borrower, third to the payment of fees then due and payable any amounts owing to the Non-such Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Banks hereunder, ratably among them in accordance with the amounts Bank as a result of such fees then due and payable to them, fourth to the ratable payment Defaulting Bank’s breach of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all its obligations of the Borrowers hereunder, to pay amounts owing under this Agreement Agreement; and eighth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise directjurisdiction; provided that if (A) such payment is a payment of the principal amount of any Loans or any Letter of Credit Exposure in respect of which such Defaulting Bank has not fully funded its appropriate share, and (B) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and obligations in respect of Letters of Credit owed to, all non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loans of, or obligations in respect of Letters of Credit owed to, such Defaulting Bank. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post Cash Collateral pursuant to this Section shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
(iiiv) Any amount paid All or any part of such Defaulting Bank’s Letter of Credit Exposure and its Swingline Exposure shall automatically (effective on the day such Bank becomes a Defaulting Bank) be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting Bank’s Revolving Credit Commitment) but only to the extent that such reallocation does not cause the Revolving Credit Exposure of any non-Defaulting Bank to exceed such non-Defaulting Bank’s Revolving Credit Commitment.
(v) If the reallocation described in clause (iv) above cannot, or can only partially, be effected, each Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, within two (2) Business Days following notice by the Borrowers for Administrative Agent, (x) first, prepay Swingline Loans made to it in an amount equal to the account of Swingline Banks’ Fronting Exposure and (y) second, Cash Collateralize any Issuing Bank’s Fronting Exposure with respect to such Borrower in accordance with the procedures set forth in Section 3.08.
(b) If the Borrowers, the Administrative Agent, the Issuing Banks and the Swingline Bank agree in writing in their sole discretion that a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not should no longer be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)Cash Collateral), such that Bank will, to the extent applicable, purchase at par such that portion of outstanding Advances Loans of the other Banks and/or make or take such other adjustments actions as the Administrative Agent may determine to be necessary to cause the Revolving Loans and funded and unfunded participations in Letters of Credit Obligations of the Banks and Swingline Loans to be held on a pro rata basis by the Banks in accordance with their respective CommitmentsPro Rata Shares (without giving effect to Section 2.21(a)(iii)), whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers any Borrower while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such that Bank’s having been a Defaulting Bank.
Appears in 4 contracts
Sources: Loan Agreement (Spire Missouri Inc), Loan Agreement (Spire Missouri Inc), Loan Agreement (Spire Alabama Inc)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(ab) Such fees shall cease to accrue on the Available Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such feessubsection 2.4(a);
(c) the Commitment and Loans of such Defaulting Bank shall not be included in determining whether all Banks, the Majority Banks or the Required Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to subsection 10.1); provided that any waiver, amendment or modification requiring the consent of all Banks or each affected Bank which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank; and
(d) if any L/C Obligations exist at the time a Bank becomes a Defaulting Bank then:
(i) Any amount paid all or any part of such L/C Obligations shall be reallocated among the non-Defaulting Banks in accordance with their respective Commitment Percentages but only to the extent (x) the sum of all non-Defaulting Banks’ Loans plus non-Defaulting Banks’ L/C Obligations plus such Defaulting Bank’s Commitment Percentage of the L/C Obligations does not exceed the total of all non-Defaulting Banks’ Commitments and, in the case of each non-Defaulting Bank and after giving effect to such reallocation, the Loans and L/C Obligations of any such non-Defaulting Bank do not exceed such non-Defaulting Bank’s Commitment and (y) the conditions set forth in subsection 4.2 are satisfied at such time;
(ii) if (w) the reallocation described in clause (i) above cannot, or can only partially, be effected, then upon the written request of any Issuing Bank, the applicable Borrower shall deposit, within five Business Days after its receipt of such request, in a cash collateral account opened by the Borrowers or otherwise received Administrative Agent, cash in an amount requested in such notice, such amount not to exceed such Defaulting Bank’s Commitment Percentage of the L/C Obligations at the time of such request attributable to the Letters of Credit issued by the Agent such Issuing Bank for the account of such Borrower;
(iii) amounts deposited pursuant to clause (ii) above at the request of any Issuing Bank shall be applied by the Administrative Agent to reimburse such Issuing Bank for any participations required to be funded by such Defaulting Bank;
(iv) to the extent the Borrowers cash collateralize any portion of such Defaulting Bank’s L/C Obligations pursuant to clause (ii) above, the Borrowers shall not be required to pay any Letter of Credit fees pursuant to Section 2.26(c) to such Defaulting Bank with respect to such Defaulting Bank’s L/C Obligations during the period such Defaulting Bank’s L/C Obligations are cash collateralized;
(v) if such Defaulting Bank’s L/C Obligations are reallocated pursuant to clause (i) above, then the Letter of Credit fees payable to the Banks shall be adjusted in accordance with such non-Defaulting Banks’ Commitment Percentages;
(e) so long as any Bank is a Defaulting Bank, no Issuing Bank under this Agreement other than shall be required to issue, amend or increase any amounts representing principal Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with Section 2.23(d), and participating interests in any such newly issued or interest increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.26(d)(i) (and Defaulting Banks shall not participate therein);
(f) any amount payable to such Defaulting Bank hereunder (whether on account of feesprincipal, indemnity payments interest, fees or other amounts not constituting principal or interestotherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to subsection 10.6 but excluding subsection 2.19) will not be paid or shall, in lieu of being distributed to such Defaulting Bank, but will instead be retained by the Administrative Agent in a segregated non-interest bearing account until (and, subject to Section 2.18(d)) the termination any applicable requirements of the Commitments and payment in full of all obligations of the Borrowers hereunder and will law, be applied at such time or times as may be determined by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first (i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, (ii) second, to payment of any amounts owing by such Defaulting Bank to an Issuing Bank, (iii) third, if so determined by the Administrative Agent or requested by an Issuing Bank, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any existing or future participating interest in any Letter of Credit, (iv) fourth, to the funding of any Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement and (v) fifth, if so determined by the Administrative Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any Loans under this Agreement, second to the payment of post-default interest . The rights and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as remedies against a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or subsection 2.23 are in addition to other amounts), provided rights and remedies that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank Borrowers may have against such Defaulting Bank; and
(d) . In the event and on the date that the Borrowers Administrative Agent, the Company and the Agent Issuing Banks each agree in writing in their discretion that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify the parties hereto, whereupon as L/C Obligations of the effective Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Loans of the other Banks and/or make such (other adjustments than Competitive Loans) as the Administrative Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Loans in accordance with their respective Commitments, whereupon its Commitment Percentage and such Bank will cease to shall no longer be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 4 contracts
Sources: Credit Agreement (Deere & Co), Credit Agreement (Deere & Co), Credit Agreement (Deere John Capital Corp)
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees3.2(a);
(ib) Any amount paid by the Borrowers Commitment and Outstanding Extensions of Credit of such Defaulting Bank shall not be included in determining whether all Banks (or otherwise received by each Bank) or the Agent for Majority Banks have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (b) shall not apply to the account 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 if such Bank is an affected Bank; provided, further, that there shall not be any amendment, modification or waiver (i) of any provision of Section 4.2 or Section 10.1 in a manner that would alter the pro rata sharing of payments required thereby, or (ii) causing the reduction of the percentage specified in the definition of Majority Banks, or (iii) causing the consent to the assignment or transfer by the Borrower of any of its respective rights and obligations under this Agreement and the other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesLoan Documents, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by in each case without the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts consent of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate if any Swingline Exposure or L/C Obligations exist at the unused amount of the Commitment of time such Bank becomes a Defaulting Bank upon not less than three then;
(3i) Business Days’ prior notice to all or any part of the Agent (which will promptly notify the Banks thereof), Swingline Exposure and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account L/C Exposure of such Defaulting Bank under this Agreement shall be reallocated (whether on account effective as of principalthe date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, interest, fees, indemnity or other amounts), provided that such termination will not be deemed but only to be a waiver or release the extent the sum of any claim any Borrower, the Agent or any Bank may have against all non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s Swingline Exposure and L/C Exposure does not exceed the total of all non-Defaulting Banks’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, within two Business Days following the Borrower’s receipt of written notice by the Administrative Agent, (x) first, prepay such Defaulting Bank’s Swingline Exposure and (y) second, cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Bank’s L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 8.2 for so long as such L/C Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Bank’s L/C Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c) with respect to such Defaulting Bank’s L/C Exposure during the period such Defaulting Bank’s L/C Exposure is cash collateralized;
(iv) if all or any portion of such Defaulting Bank’s L/C Exposure is reallocated pursuant to clause (i) above, then the Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank pursuant to Section 2.5(c)(i) with respect to such Defaulting Bank’s reallocated L/C Exposure shall be payable to the non-Defaulting Banks in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocation; and
(v) if all or any portion of such Defaulting Bank’s L/C Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Bank hereunder, all Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank under Section 2.5(c)(i) with respect to such Defaulting Bank’s unreallocated L/C Exposure shall be payable to the Issuing Banks, ratably based on the portion of such L/C Exposure attributable to Letters of Credit issued by each Issuing Bank, until and to the extent that such L/C Exposure is reallocated and/or cash collateralized pursuant to clause (i) or (ii) above;
(d) so long as such Bank is a Defaulting Bank, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is satisfied that the related exposure in respect of Swingline Loans, and the Issuing Banks are satisfied that the Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments of the non-Defaulting Banks and, to the extent such 100% coverage is not achieved, by cash collateral which will be provided by the Borrower in accordance with Section 2.8(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.8(c)(i) (and such Defaulting Bank shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Lender or the Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations to extend credit generally (such Bank referenced in clauses (i) and (ii), a “Disregarded Bank”), the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender is satisfied that the related exposure in respect of Swingline Loans, and the Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments of the non-Disregarded Banks and, to the extent such 100% coverage is not achieved, by cash collateral which will be provided by the Borrower in the manner consistent with Section 2.8(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among the non-Disregarded Banks in a manner consistent with Section 2.8(c) (and such Disregarded Bank shall not participate therein). In the event that the Borrowers Administrative Agent, the Borrower, the Swingline Lender and the Agent agree in writing in their discretion Issuing Banks each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify the parties hereto, whereupon as Swingline Exposures and L/C Exposures of the effective Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment, and on such date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Revolving Loans of the other Banks and/or make such other adjustments as the Administrative Agent shall determine may determine to be necessary in order for such Bank to cause the hold such Revolving Credit Obligations of the Banks to be on a pro rata basis Loans in accordance with their respective Commitmentsits Revolving Percentage. The rights and remedies against, whereupon such Bank will cease to be and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and will be a Non-Defaulting Bank (cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Lender, each Issuing Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect , the foregoing); provided that no adjustments will be made retroactively Swingline Lender or the Borrower may at any time have against, or with respect to fees accrued or payments made by or on behalf of the Borrowers while to, such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 3 contracts
Sources: Credit Agreement (Centerpoint Energy Inc), Credit Agreement (Centerpoint Energy Inc), Credit Agreement (Centerpoint Energy Inc)
Defaulting Banks. Notwithstanding (a) If at any provision of this Agreement time (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Advance to the contrary, if Borrower and (iii) the Borrower shall be required to make any Bank becomes a payment hereunder or under any Note to or for the account of such Defaulting Bank, then the following provisions shall apply for Borrower may, so long as no Event of Default shall have occurred and be continuing at such time and to the fullest extent permitted by applicable law, set off and otherwise apply the amount owed by the Borrower to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make such Defaulted Advance. If the Borrower shall so set off and otherwise apply the amount owed by the Borrower to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make any such Defaulted Advance on any date, the amount so set off and otherwise applied by the Borrower shall constitute for all purposes of this Agreement and the Notes an Advance by such Defaulting Bank made on the date of such setoff. Such Advance shall be a Base Rate Advance and shall be considered, for all purposes of this Agreement, to comprise part of the Borrowing in connection with which such Defaulted Advance was originally required to have been made pursuant to Section 2.01 or Section 2.03(a), as the case may be, even if the other Advances comprising such Borrowing shall be Eurocurrency Rate Advances on the date such Advance is a Defaulting Bank:deemed to be made pursuant to this Section 2.19
(a) Such The Borrower shall notify the Administrative Agent at any time the Borrower makes a setoff under this Section 2.19(a) and shall specify in such notice (A) the name of the Defaulting Bank will not and the Defaulted Advance required to be entitled to any fees accruing during made by such period pursuant to Section 2.04 Defaulting Bank and (without prejudice to B) the rights of the Banks other than Defaulting Banks amount set off and otherwise applied in respect of such feesDefaulted Advance pursuant to this Section 2.19(a);. Any part of such payment otherwise required to be made by the Borrower to or for the account of such Defaulting Bank that is paid by the Borrower, after giving effect to the amount set off and otherwise applied by the Borrower pursuant to this Section 2.19(a), shall be applied by the Administrative Agent as specified in Section 2.19(b) or 2.19(c).
(b) If at any time (i) Any amount paid by any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Amount to the Borrowers Administrative Agent or otherwise received by any of the other Banks and (iii) the Borrower shall make any payment hereunder or under any Note to the Administrative Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead then the Administrative Agent may, on its behalf or on behalf of such other Banks and to the fullest extent permitted by applicable law, apply at such time the amount so paid by the Borrower to or for the account of such Defaulting Bank to the payment of each such Defaulted Amount to the extent required to pay such Defaulted Amount. If the Administrative Agent shall so apply any such amount to the payment of any such Defaulted Amount on any date, the amount so applied by the Administrative Agent shall constitute for all purposes of this Agreement and the Notes payment to such extent of such Defaulted Amount on such date. Any such amount so applied by the Administrative Agent shall be retained by the Administrative Agent or distributed by the Administrative Agent to such other Banks, ratably in accordance with their respective portions of such Defaulted Amounts payable at such time to the Administrative Agent and such other Banks and, if the amount of such payment made by the Borrower shall at any time be insufficient to pay all Defaulted Amounts owing at such time to the Administrative Agent and the other Banks, in the following order of priority:
(A) first, to the Administrative Agent for any Defaulted Amounts owing to the Administrative Agent (solely in its capacity as Administrative Agent) at such time; and
(B) second, to the other Banks for any Defaulted Amounts owing to the other Banks (solely in their capacity as Banks) at such time, ratably in accordance with such respective Defaulted Amounts owing to each other Bank (solely in its capacity as a segregated non-interest bearing Bank) at such time. Any part of such payment made by the Borrower for the account until (subject of such Defaulting Bank remaining, after giving effect to the amount applied by the Administrative Agent pursuant to this Section 2.18(d2.19(b)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will , shall be applied by the Administrative Agent as specified in Section 2.19(c).
(c) If at any time, (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall not owe a Defaulted Advance or a Defaulted Amount and (iii) the Borrower, the Administrative Agent or any other Bank shall be required to pay or to distribute any amount hereunder or under any Note to or for the account of such Defaulting Bank, then the Borrower or such other Bank shall pay such amount to the Administrative Agent to be held by the Administrative Agent, to the fullest extent permitted by applicable law, in escrow or the Administrative Agent shall, to the making fullest extent permitted by applicable law, hold in escrow such amount otherwise held by it. Any funds held by the Administrative Agent in escrow under this Section 2.19(c) shall be deposited by the Administrative Agent in an account with Bank One, in the name and under the control of payments the Administrative Agent, but subject to the provisions of this Section 2.19(c). The terms applicable to such account, including the rate of interest payable with respect to the credit balance of such account from time to time, shall be Bank One's standard terms applicable to escrow accounts maintained with it. Any interest credited to such account from time to time shall be held by the Administrative Agent in escrow under, and applied by the Administrative Agent from time to time in accordance with the provisions of, this Section 2.19(c). The Administrative Agent shall, to the fullest extent permitted by applicable law, apply all funds so held in escrow from time to time to the extent necessary to make any Advances required to be made by such Defaulting Bank and to pay any amount payable by such Defaulting Bank hereunder to the Administrative Agent or any other Bank, as and when such Advances or such amounts are required to be made or paid and, if the amount so held in escrow shall any time be insufficient to make and pay all such Advances and all such amounts required to be made or paid at such time, in the following order of priority: first :
(A) first, to the payment of Administrative Agent for any amounts owing due and payable by such Defaulting Bank to the Administrative Agent under this Agreementhereunder (solely in its capacity as Administrative Agent) at such time;
(B) second, second to the payment of post-default interest other Banks for any amounts due and then current interest payable by such Defaulting Bank to the other Banks hereunder (solely in their capacity as Banks) at such time, ratably in accordance with such respective amounts due and payable to the Non-Defaulting Bankseach other Bank (solely in its capacity as Bank) at such time; and
(C) third, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable Borrower for any Advances required to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to be made by such Defaulting Bank or as pursuant to the Commitment of such Defaulting Bank at such time. If such Defaulting Bank shall, at any time, cease to be a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid Defaulting Bank, any funds held by the Borrowers for the account of a Defaulting Bank representing principal or interest payable Administrative Agent in escrow at such time with respect to such Defaulting Bank shall be paid distributed by the Administrative Agent to such Defaulting Bank in the same amounts and in the same manner as if applied by such Defaulting Bank were a Non-to the amounts owing to such Defaulting Bank;Bank at such time under this Agreement in accordance with the terms of this Agreement.
(cd) The Borrowers may terminate the unused amount of the Commitment of rights and remedies against a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or Section 2.19 are in addition to other amounts), provided rights and remedies that the Borrower may have against such termination will not be deemed Defaulting Bank with respect to be a waiver or release of any claim any Borrower, Defaulted Advance and that the Administrative Agent or any other Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting BankDefaulted Amount.
Appears in 3 contracts
Sources: 364 Day Credit Agreement (Donnelley R R & Sons Co), 364 Day Credit Agreement (Donnelley R R & Sons Co), 364 Day Credit Agreement (Donnelley R R & Sons Co)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long then, until such time as such Bank is no longer a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice , to the rights of the Banks other than Defaulting Banks in respect of such fees);extent permitted by applicable law:
(i) Such Defaulting Bank’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Banks and in Section 9.07.
(ii) Fees shall cease to accrue on such Defaulting Bank’s Pro Rata Share of the average daily Unutilized Revolving Credit Commitment pursuant to Section 2.07(a).
(iii) Any amount paid by the Borrowers payment of principal, interest, fees (other than any fees described in clause (ii) above) or otherwise other amounts received by the Administrative Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesvoluntary or mandatory, indemnity payments at maturity, pursuant to Section 7 or other amounts not constituting principal otherwise) shall be applied at such time or interest) will not times as may be paid or distributed to such Defaulting Bank, but will instead be retained determined by the Administrative Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agentas follows: first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to any Issuing Bank or the Swingline Bank hereunder; third, if so determined by the Administrative Agent or requested by any Issuing Bank or the Swingline Bank, to be held as Cash Collateral for future funding obligations of such Defaulting Bank in respect of any participation in any Letter of Credit or Swingline Loan; fourth, as Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of such Defaulting Bank to fund Loans under this Agreement; sixth, second to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Defaulting Banks, ratably among them in accordance with the amounts Issuing Banks or the Swingline Bank as a result of any judgment of a court of competent jurisdiction obtained by any Bank, any Issuing Bank or the Swingline Bank against that Defaulting Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement; seventh, third so long as no Default exists, to the payment of fees then due and payable any amounts owing to the Non-Borrower as a result of any judgment of a court of competent jurisdiction obtained by Borrower against such Defaulting Banks hereunder, ratably among them in accordance with the amounts Bank as a result of such fees then due and payable to them, fourth to the ratable payment Defaulting Bank’s breach of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all its obligations of the Borrowers hereunder, to pay amounts owing under this Agreement Agreement; and eighth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise directjurisdiction; provided that if (A) such payment is a payment of the principal amount of any Loans or any Letter of Credit Exposure in respect of which such Defaulting Bank has not fully funded its appropriate share, and (B) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and obligations in respect of Letters of Credit owed to, all non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loans of, or obligations in respect of Letters of Credit owed to, such Defaulting Bank. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post Cash Collateral pursuant to this Section shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
(iiiv) Any amount paid All or any part of such Defaulting Bank’s Letter of Credit Exposure and its Swingline Exposure shall automatically (effective on the day such Bank becomes a Defaulting Bank) be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting Bank’s Revolving Credit Commitment) but only to the extent that (A) no Event of Default shall have occurred and be continuing (and, unless Borrower shall have otherwise notified the Administrative Agent at the time, Borrower shall be deemed to have represented and warranted that such condition is satisfied at such time), and (B) such reallocation does not cause the Revolving Credit Exposure of any non-Defaulting Bank to exceed such non-Defaulting Bank’s Revolving Credit Commitment.
(v) If the reallocation described in clause (iv) above cannot, or can only partially, be effected, Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, within two (2) Business Days following notice by the Borrowers for Administrative Agent, (x) first, prepay Swingline Loans in an amount equal to the account of Swingline Banks’ Fronting Exposure and (y) second, Cash Collateralize any Issuing Bank’s Fronting Exposure in accordance with the procedures set forth in Section 3.08.
(b) If Borrower, the Administrative Agent, the Issuing Banks and the Swingline Bank agree in writing in their sole discretion that a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not should no longer be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)Cash Collateral), such that Bank will, to the extent applicable, purchase at par such that portion of outstanding Advances Loans of the other Banks and/or make or take such other adjustments actions as the Administrative Agent may determine to be necessary to cause the Revolving Loans and funded and unfunded participations in Letters of Credit Obligations of the Banks and Swingline Loans to be held on a pro rata basis by the Banks in accordance with their respective CommitmentsPro Rata Shares (without giving effect to Section 2.21(a)(iii)), whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Borrower while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such that Bank’s having been a Defaulting Bank.
Appears in 3 contracts
Sources: Loan Agreement (Laclede Gas Co), Loan Agreement (Laclede Gas Co), Loan Agreement (Laclede Group Inc)
Defaulting Banks. Notwithstanding anything contained in Sections 2.8, 2.9 or any other provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as Bank then: all Letters of Credit Outstanding and Swing Loans outstanding at such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Bankstime, and fifth after the termination all Letters of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank Credit issued or as Swing Loans made while there exists a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid reallocated among the non-Defaulting Banks in accordance with their respective Ratable Shares (such Ratable Shares shall be determined without reference to each Defaulting Bank’s Ratable Share) so long as no Potential Default or Event of Default exists on the date of reallocation and thereafter continues uncured, but only to the extent (a) the sum of all non-Defaulting Banks’ Revolving Credit Loans then outstanding plus the sum of such non-Defaulting Banks’ Ratable Share of the Dollar Equivalent of all Swing Loans then outstanding and Letters of Credit Outstanding at such time does not exceed the total of all non-Defaulting Banks’ Revolving Credit Commitments and (b) the aggregate obligation of each non-Defaulting Bank to acquire, refinance or fund any participations in the Defaulting Bank’s portion of Letters of Credit Outstanding and Swing Loans pursuant to reallocation contemplated above shall not exceed the positive difference between (i) the Revolving Credit Commitment of such Bank minus (ii) such Bank’s Revolving Credit Loans then outstanding plus such Bank’s Ratable Share of the Dollar Equivalent of all Swing Loans then outstanding and Letters of Credit Outstanding at such time. If the reallocation described in the preceding sentence cannot, or can only partially, be effected, the Borrowers shall within one Business Day following notice by the Administrative Agent, (1) first, prepay outstanding Swing Loans and (2) second, cash collateralize such Defaulting Bank Bank’s portion of Letters of Credit Outstanding (in each case, after giving effect to any partial reallocation pursuant the same amounts immediately preceding sentence). To the extent such Letters of Credit Outstanding and Swing Loans are reallocated pursuant to this Section 2.14, then the fees payable to the Banks pursuant to Section 2.8.2 (but not Section 2.3) shall be adjusted in the same manner as if accordance with such Defaulting Bank were a Nonnon-Defaulting Bank;
(c) The Borrowers may terminate Banks’ Ratable Shares. To the unused amount extent a portion of the Commitment Defaulting Bank’s Letters of a Defaulting Bank upon not less than three Credit outstanding are cash collateralized pursuant to clause (32) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof)above, and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers shall not be obligated to pay any fees to or for the account of such Defaulting Bank under pursuant to Section 2.8.2 with respect to such Defaulting Bank’s Letter of Credit Outstandings during the period such Defaulting Bank’s Letter of Credit Outstandings are cash collateralized. To the extent such Letters of Credit Outstanding are not reallocated pursuant to this Agreement (whether on account Section 2.14, or the Defaulting Bank’s Ratable Share of principalLetters of Credit Outstanding have not been cash collateralized, interestthen, fees, indemnity without prejudice to any rights or other amounts), provided that such termination will not be deemed to be a waiver or release remedies of any claim any Borrower, the Agent Issuing Bank or any Bank may hereunder, all Commitment Fees that otherwise would have against been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank; and
(d’s Commitment that was utilized by such Letters of Credit Outstanding) and Letter of Credit Fees with respect to such Defaulting Bank’s Ratable Share of the Letters of Credit Outstanding shall be payable to the Issuing Bank. Subject to Section 11.23, nothing contained in this Section or elsewhere in this Agreement and no reallocation of any Defaulting Bank’s Ratable Share of any obligation hereunder shall relieve such Defaulting Bank of its obligation to fund any portion of any amount owed by such Defaulting Bank hereunder. In the event that the Borrowers Administrative Agent, the Borrower, and the Agent Issuing Banks each agree in writing in their discretion that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify Letters of Credit Outstanding and the parties hereto, whereupon as Swing Loans outstanding shall be readjusted to reflect the inclusion of the effective date specified in such notice Bank’s Revolving Credit Commitment and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b))on such date, such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Loans of the other Banks and/or make such other adjustments as the Administrative Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Loans in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bankits Ratable Share.
Appears in 3 contracts
Sources: Credit Agreement (Triumph Group Inc), Credit Agreement (Triumph Group Inc), Credit Agreement (Triumph Group Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such the Applicant shall not be required to pay any participation fees to such Defaulting Bank will pursuant to Section 2.6 with respect to such Defaulting Bank’s Commitment; provided that if such Defaulting Bank’s Commitment is not cash collateralized pursuant to Section 2.16(c), then, without prejudice to any rights or remedies of the Issuing Bank or any Bank hereunder, the participation fee payable under Section 2.6 with respect to such Defaulting Bank’s Commitment shall be payable to the Issuing Bank until such Commitment is cash collateralized pursuant to Section 2.16(c). For the avoidance of doubt, it is being understood that, the interest payable by the Applicant pursuant to Section 2.3 or Section 2.4 on LC Disbursements and Liquidity Advances shall continue to be payable to the applicable Banks, including the Defaulting Bank, to the extent the Defaulting Bank has funded its share of any such LC Disbursement or Liquidity Advance and would be entitled to such interest had it not become a Defaulting Bank;
(b) the Commitment of such Defaulting Bank shall not be included in determining whether the Required Banks have taken or may take any fees accruing during such period action hereunder (including any consent to any amendment or waiver pursuant to Section 2.04 8.9), other than any waiver, amendment or modification requiring the consent of all Banks or of each affected Bank;
(without prejudice c) the Applicant shall, within one Business Day following written notice from the Administrative Agent demanding the deposit of cash collateral pursuant to this Section 2.16, deposit in an account established by the rights Applicant with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Banks (the “Defaulting Bank Collateral Account”), an amount in cash which is, to the extent allowed by law, free and clear of all rights and claims of third parties equal to such Defaulting Bank’s Commitment for so long as such Commitment is outstanding; provided that (i) if at any time the Administrative Agent determines that the amount on deposit in the Defaulting Bank Collateral Account shall be less than such Defaulting Bank’s Commitment, the Administrative Agent may make demand on the Applicant to pay, and the Applicant will, within one Business Day after written notice from the Administrative Agent making such demand, pay to the Administrative Agent an amount equal to such deficiency, which funds shall be deposited in the Defaulting Bank Collateral Account, (ii) the Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such Defaulting Bank Collateral Account, (iii) other than Defaulting Banks in respect any interest earned on the investment of such feesdeposits, which investments shall be made at the option and sole discretion of the Administrative Agent, such deposits shall not bear interest and, subject to the provisions of this clause (c), interest or profits, if any, on such investments shall accumulate in such account, (iv) amounts held in the Defaulting Bank Collateral Account will be paid to the Issuing Bank from time to time as necessary to pay amounts owing to the Issuing Bank by the Defaulting Bank pursuant to Sections 2.2 and 2.5 hereof, (v) if the Applicant is required to provide an amount of cash collateral under this clause (c), such amount (to the extent not applied as aforesaid) shall be returned to the Applicant within three Business Days after a Defaulting Bank has been determined in accordance with the terms of this Section 2.16 to no longer be a Defaulting Bank or such Defaulting Bank has been replaced in accordance with Section 2.17 and (vi) amounts in such Defaulting Bank Collateral Account shall be repaid to the Applicant to the extent not required as collateral from time to time pursuant to the provisions of this clause (c);
(id) Any amount paid by to the Borrowers extent the Administrative Agent receives any payments or otherwise received by the Agent other amounts for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid deemed to have requested that the Administrative Agent use such payment or other amount to fulfill such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were Bank’s previously unsatisfied obligations to fund a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account Liquidity Advance or any other unfunded payment obligation of such Defaulting Bank under this Agreement (whether on account of principalSections 2.2, interest, fees, indemnity 2.5 or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank8.3(b) hereof; and
(de) for the avoidance of doubt, the Applicant shall retain and reserve its other rights and remedies respecting each Defaulting Bank. In the event that the Borrowers Administrative Agent, the Applicant and the Agent agree in writing in their discretion Issuing Bank each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as then this Section 2.16 shall no longer apply in respect of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a rehabilitated Defaulting Bank.
Appears in 3 contracts
Sources: Reimbursement Agreement (South Jersey Industries Inc), Reimbursement Agreement (South Jersey Industries Inc), Reimbursement Agreement (South Jersey Industries Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such the Applicant shall not be required to pay any participation fees to such Defaulting Bank will pursuant to Section 2.6 with respect to such Defaulting Bank’s Commitment; provided that if such Defaulting Bank’s Commitment is not cash collateralized pursuant to Section 2.16(c), then, without prejudice to any rights or remedies of the Issuing Bank or any Bank hereunder, the participation fee payable under Section 2.6 with respect to such Defaulting Bank’s Commitment shall be payable to the Issuing Bank until such Commitment is cash collateralized pursuant to Section 2.16(c). For the avoidance of doubt, it is being understood that, the interest payable by the Applicant pursuant to Section 2.3 or Section 2.4 on LC Disbursements and Liquidity Advances shall continue to be payable to the applicable Banks, including the Defaulting Bank, to the extent the Defaulting Bank has funded its share of any such LC Disbursement or Liquidity Advance and would be entitled to such interest had it not become a Defaulting Bank;
(b) the Commitment of such Defaulting Bank shall not be included in determining whether the Required Banks have taken or may take any fees accruing during such period action hereunder (including any consent to any amendment or waiver pursuant to Section 2.04 8.9), other than any waiver, amendment or modification requiring the consent of all Banks or of each affected Bank;
(without prejudice c) the Applicant shall, within one Business Day following written notice from the Administrative Agent demanding the deposit of cash collateral pursuant to this Section 2.16, deposit in an account established by the rights Applicant with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Banks (the “Defaulting Bank Collateral Account”), an amount in cash which is, to the extent allowed by law, free and clear of all rights and claims of third parties equal to such Defaulting Bank’s Commitment for so long as such Commitment is outstanding; provided that (i) if at any time the Administrative Agent determines that the amount on deposit in the Defaulting Bank Collateral Account shall be less than such Defaulting Bank’s Commitment, the Administrative Agent may make demand on the Applicant to pay, and the Applicant will, within one Business Day after written notice from the Administrative Agent making such demand, pay to the Administrative Agent an amount equal to such deficiency, which funds shall be deposited in the Defaulting Bank Collateral Account, (ii) the Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such Defaulting Bank Collateral Account, (iii) other than Defaulting Banks in respect any interest earned on the investment of such feesdeposits, which investments shall be made at the option and sole discretion of the Administrative Agent, such deposits shall not bear interest and, subject to the provisions of this clause (c), interest or profits, if any, on such investments shall accumulate in such account, (iv) amounts held in the Defaulting Bank Collateral Account will be paid to the Issuing Bank from time to time as necessary to pay amounts owing to the Issuing Bank by the Defaulting Bank pursuant to Sections 2.2 and 2.5 hereof, (v) if the Applicant is required to provide an amount of cash collateral under this clause (c), such amount (to the extent not applied as aforesaid) shall be returned to the Applicant within three Business Days after a Defaulting Bank has been determined in accordance with the terms of this Section 2.16 to no longer be a Defaulting Bank or such Defaulting Bank has been replaced in accordance with Section 2.17(b) and (vi) amounts in such Defaulting Bank Collateral Account shall be repaid to the Applicant to the extent not required as collateral from time to time pursuant to the provisions of this clause (c);
(id) Any amount paid by to the Borrowers extent the Administrative Agent receives any payments or otherwise received by the Agent other amounts for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid deemed to have requested that the Administrative Agent use such payment or other amount to fulfill such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were Bank’s previously unsatisfied obligations to fund a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account Liquidity Advance or any other unfunded payment obligation of such Defaulting Bank under this Agreement (whether on account of principalSections 2.2, interest, fees, indemnity 2.5 or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank8.3(b) hereof; and
(de) for the avoidance of doubt, the Applicant shall retain and reserve its other rights and remedies respecting each Defaulting Bank. In the event that the Borrowers Administrative Agent, the Applicant and the Agent agree in writing in their discretion Issuing Bank each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as then this Section 2.16 shall no longer apply in respect of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a rehabilitated Defaulting Bank.
Appears in 3 contracts
Sources: Reimbursement Agreement (South Jersey Industries Inc), Reimbursement Agreement (South Jersey Industries Inc), Reimbursement Agreement (South Jersey Industries Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees2.5(a);
(ib) Any amount paid by the Borrowers Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise received by provided in Section 10.1, this clause (b) shall not apply to the Agent for the account vote of a Defaulting Bank under in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank directly affected thereby;
(c) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) if the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Agent, cash collateralize for the benefit of the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this Agreement other than clause (c), the Company shall not be required to pay any amounts representing principal fees to such Defaulting Bank pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (c), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (c), then, without prejudice to any rights or interest remedies of any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank (whether on account solely with respect to the portion of fees, indemnity payments or other amounts not constituting principal or interestsuch Defaulting Bank’s Commitment that was utilized by such LC Obligations) will not be paid or distributed and LC Fees payable under Section 3.4 with respect to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination ’s Pro Rata Share of the Commitments and payment in full of all obligations of the Borrowers hereunder and will LC Obligations shall be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(d) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause(c)(i) above (and Defaulting Banks shall not participate therein).
(e) If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(f) In the event that the Borrowers Agent, the Company, and the Agent agree in writing in their discretion each LC Issuer each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify the parties hereto, whereupon as Banks’ Pro Rata Shares of the effective LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Loans of the other Banks and/or make such other adjustments as the Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Loans in accordance with their respective Commitmentsits Pro Rata Share of the Aggregate Commitment; provided, whereupon that if the Company cash collateralized any portion of such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf Pro Rata Share of the Borrowers while LC Obligations pursuant to Section 4.7(c), such Bank was a Defaulting Bank; and provided, further, that except cash shall be returned to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting BankCompany.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Consumers Energy Co), Revolving Credit Agreement (CMS Energy Corp), Revolving Credit Agreement (CMS Energy Corp)
Defaulting Banks. Notwithstanding If for any provision reason any Bank wrongfully (in violation of this Agreement Agreement) fails or refuses to the contrarytimely make any Advance required of it, if or otherwise defaults on any of its material obligations under this Agreement, and fails to cure its default within 5 Banking Days of receiving notice of its failure to perform (such Bank becomes being a "Defaulting Bank"), then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice in addition to the rights and remedies that may be available to the Administrative Agent and the Banks at law or in equity, the Defaulting Bank's right to participate in the Loan and the Agreement will be suspended during the pendency of the Banks other than Defaulting Banks in respect Bank's uncured default, and (without limiting the foregoing) the Administrative Agent may (or at the direction of such fees);
(ithe Majority Banks, shall) Any amount paid by withhold from the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement any interest payments, fees, principal payments or other than any amounts representing principal or interest sums otherwise payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to under the Loan Documents until such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement has been cured. Each non-defaulting Bank will have the right, but not the obligation, in its sole discretion, to acquire at par a proportionate share (whether based on account the ratio of principal, interest, fees, indemnity or other amounts), provided its Pro Rata Share of the Commitment to the aggregate amount of the Pro Rata Shares of the Commitments of all of the non-defaulting Banks that such termination will not be deemed elect to be acquire a waiver or release share of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d's Pro Rata Share of the Commitment) In of the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as 's Pro Rata Share of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held Commitment, including without limitation its proportionate share in the segregated account referred to in Section 2.18(b))outstanding principal balance of the Loans. The Defaulting Bank will pay and protect, such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances defend and indemnify Administrative Agent and each of the other Banks and/or make such against, and hold Administrative Agent, and each of the other adjustments as Banks harmless from, all claims, actions, proceedings, liabilities, damages, losses, and expenses (including without limitation attorneys' fees and costs, and interest at the Prime Rate plus 2.0% per annum for the funds advanced by Administrative Agent or any Banks on account of the Defaulting Bank) they may sustain or incur by reason of or in consequence of the Defaulting Bank's failure or refusal to perform its obligations under the Loan Documents. Administrative Agent may determine set off against payments due to be necessary to cause the Revolving Credit Obligations Defaulting Bank for the claims of Administrative Agent and the other Banks against the Defaulting Bank. The exercise of these remedies will not reduce, diminish or liquidate the Defaulting Bank's Pro Rata Share of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank Commitment (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed that part or all of such Pro Rata Share of the Commitment is acquired by the affected partiesother Banks as specified above) or its obligations to share losses and reimbursement for costs, no change hereunder from Defaulting Bank liabilities and expenses under this Agreement. This indemnification will survive the payment and satisfaction of all of the Borrower's obligations and liabilities to Non-Defaulting Bank will constitute a waiver the Banks. The foregoing provisions of this Section 10.9 are solely for the benefit of the Administrative Agent and the Banks, and may not be enforced or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bankrelied upon by the Borrower.
Appears in 2 contracts
Sources: Revolving Loan Agreement (Kb Home), Term Loan Agreement (Kb Home)
Defaulting Banks. Notwithstanding any provision of this Agreement to (a) If a Bank becomes, and during the contraryperiod it remains, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount amounts paid by the Borrowers Borrower or otherwise received by the Administrative Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of principal, interest, fees, indemnity payments or other amounts not constituting principal or interestamounts) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Administrative Agent in a segregated non-interest bearing account until (subject to Section 2.18(d2.9(c)) the termination of the Commitments and payment in full of all obligations of the Borrowers Borrower hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Banks hereunder other than Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to pay principal then due and payable to the Non-Defaulting Banks hereunder ratably in accordance with the amounts thereof then due and payable to them, fifth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth sixth after the termination of the Commitments and payment in full of all obligations of the Borrowers Borrower hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section 2.9(a) shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
(iib) Any amount paid No Commitment of any Bank shall be increased or, except as otherwise expressly provided in Section 2.9(a), otherwise affected, and performance by the Borrowers for Borrower of its obligations shall not be excused or otherwise modified as a result of the account operation of Section 2.9(a). The rights and remedies against a Defaulting Bank representing principal or interest payable under Section 2.9(a) are in addition to such Defaulting Bank shall be paid to such Defaulting Bank in any other rights and remedies which the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Administrative Agent or any Bank may have against such Defaulting Bank; and.
(dc) In If the event that the Borrowers Borrower and the Administrative Agent agree in writing in their discretion reasonable determination that a Defaulting Bank is or a Potential Defaulting Bank should no longer be deemed to be a Defaulting Bank or a Potential Defaulting Bank, as the case may be, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)cash collateral), such that Bank will, to the extent applicable, purchase at par such that portion of outstanding Advances of the other Banks and/or make or take such other adjustments actions as the Administrative Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks Advances to be funded and held on a pro rata basis by the Banks in accordance with their respective CommitmentsCommitments and Advances, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-or Potential Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Borrower while such 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 or Potential Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank or Potential Defaulting Bank.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Amgen Inc), Bridge Credit Agreement (Amgen Inc)
Defaulting Banks. Notwithstanding (a) If any provision Fronted Letters of this Agreement to Credit are outstanding at the contrary, if any time a Bank becomes a Defaulting Bank, then and the following provisions shall apply for Commitments have not been terminated in accordance with Section 8.01, then:
(i) so long as no Default has occurred and is continuing, all or any part of the participations in outstanding Fronted Letters of Credit shall be reallocated among the Banks that are Non-Defaulting Banks in accordance with their respective Applicable Percentages (disregarding any Defaulting Bank’s Commitment) but only to the extent that the sum of (A) the aggregate principal amount of all Advances made by the Non-Defaulting Banks (in their capacity as Banks) and outstanding at such time, plus (B) the Non-Defaulting Banks’ aggregate LC Exposures, plus (C) such Defaulting Bank’s LC Exposure, does not exceed the total of all Non-Defaulting Banks’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by any Issuing Bank, cash collateralize such Defaulting Bank’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) by paying cash collateral to such Issuing Bank; provided that, so long as no Default is continuing, such cash collateral shall be released promptly upon the earliest of (A) the reallocation of the LC Exposure of the Defaulting Bank to Non-Defaulting Banks in accordance with clause (i) above, (B) a reduction in the outstanding amount available to be drawn under all outstanding Fronted Letters of Credit to zero, (C) the termination of the Defaulting Bank status of the applicable Bank, (D) such Issuing Bank’s good faith determination that there exists excess cash collateral (in which case, an amount equal to such excess cash collateral shall be released) or (E) the posting of cash collateral for the amount of a Defaulting Bank as contemplated by Section 2.07(g). In the event any Fronted Letter of Credit or a portion thereof is collateralized, no fees shall be payable by the Company on the collateralized amount of such Fronted Letter of Credit or a portion thereof;
(iii) to the extent the Applicable Percentages of Fronted Letters of Credit of the Non-Defaulting Banks are reallocated pursuant to this Section 2.07(a), then the fees payable to the Banks pursuant to Section 4.01(b)(i) shall be adjusted in accordance with the Non-Defaulting Banks’ Applicable Percentages of Fronted Letters of Credit as reallocated; or
(iv) to the extent any Defaulting Bank’s Applicable Percentage of Fronted Letters of Credit is neither cash collateralized nor reallocated pursuant to Section 2.07(a), then, without prejudice to any rights or remedies of any Issuing Bank or any Bank hereunder, all letter of credit fees payable under Section 4.01(b)(i) with respect to such Defaulting Bank’s Applicable Percentage of Fronted Letters of Credit that has not been reallocated or collateralized shall be payable to the applicable Issuing Bank until such Defaulting Bank’s Applicable Percentage of Fronted Letters of Credit has been fully cash collateralized and/or reallocated.
(b) So long as any Bank is a Defaulting Bank:
(a) Such Defaulting , no Issuing Bank shall be required to issue, amend or increase any Fronted Letter of Credit, unless it is satisfied that the related exposure will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to 100% covered by the rights Commitments of the Non-Defaulting Banks other than and/or cash collateral will be provided by the Company in accordance with Section 2.07(a) or provided in accordance with Section 2.07(g), and participating interests in any such newly issued, amended or increased Fronted Letter of Credit shall be allocated among Non-Defaulting Banks in respect of such feesa manner consistent with Section 2.07(a)(i) (and Defaulting Banks shall not participate therein);.
(ic) Any amount paid No Commitment of any Bank shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.07, performance by the Borrowers Company of its obligations shall not be excused or otherwise received by modified as a result of the Agent for the account operation of this Section 2.07. The rights and remedies against a Defaulting Bank under this Agreement Section 2.07 are in addition to any other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesrights and remedies which the Company, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Issuing Bank may have against such Defaulting Bank; and.
(d) In When a Defaulting Bank shall exist (i) any Multi-Bank Letter of Credit shall be issued by the event Non-Defaulting Banks in accordance with their respective Applicable Percentages (disregarding any Defaulting Bank’s Commitment) but only to the extent that the Borrowers sum of (A) the aggregate principal amount of all Advances made by the Non-Defaulting Banks (in their capacity as Banks) and outstanding at such time, plus (B) the Non-Defaulting Banks’ aggregate LC Exposures, plus (C) the amount of such Defaulting Bank’s LC Exposure if such Defaulting Bank had been included in such Multi-Bank Letter of Credit without regard for this Section 2.07(d), does not exceed the total of all Non-Defaulting Banks’ Commitments; and (ii) to the extent that the Non-Defaulting Banks shall issue any Multi-Bank Letter of Credit pursuant to this Section 2.07(d), then the fees payable to the Banks pursuant to Section 4.01(b)(i) shall be adjusted in accordance with the Non-Defaulting Banks’ Applicable Percentages (disregarding any Defaulting Bank’s Commitment).
(e) If any Multi-Bank Letter of Credit is outstanding at the time a Bank becomes a Defaulting Bank, and the Commitments have not been terminated in accordance with Section 8.01, then (i) so long as the conditions set forth in Section 5.02 are then satisfied, the Administrative Agent shall issue a Replacement Letter of Credit for such Multi-Bank Letter of Credit which excludes the Defaulting Banks as issuers thereunder but only to the extent that the sum of (A) the aggregate principal amount of all Advances made by the Non-Defaulting Banks (in their capacity as Banks) and outstanding at such time, plus (B) the Non-Defaulting Banks’ aggregate LC Exposures, plus (C) the amount of such Defaulting Bank’s LC Exposure if such Defaulting Bank had been included in such Multi-Bank Letter of Credit without regard for this Section 2.07(e), does not exceed the total of all Non-Defaulting Banks’ Commitments; and (ii) to the extent that the Non-Defaulting Banks shall issue any Multi-Bank Letter of Credit pursuant to this Section 2.07(e), then the fees payable to the Banks pursuant to Section 4.01(b)(i) shall be adjusted in accordance with the Non-Defaulting Banks’ Applicable Percentages (disregarding any Defaulting Bank’s Commitment).
(f) If the Company, the Administrative Agent and each Issuing Bank agree in writing in their discretion reasonable determination that a Defaulting Bank is should no longer be deemed to be a Defaulting Bank, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)cash collateral), such that Bank will, to the extent applicable, purchase at par such that portion of outstanding Advances of the other Banks and/or make or take such other adjustments actions as the Administrative Agent may determine to be necessary to cause the Revolving Advances, obligations under Multi-Bank Letters of Credit Obligations outstanding and funded and unfunded participations in Fronted Letters of the Banks Credit to be held on a pro rata basis by the Banks in accordance with their respective CommitmentsApplicable Percentages (without giving effect to Section 2.07(a)), whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Company while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
(g) Notwithstanding anything to the contrary contained in this Agreement, any payment of principal, interest, commitment fees, Fronted Letter of Credit commissions or other amounts received by the Administrative Agent for the account of any Defaulting Bank under this Agreement (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to any Issuing Bank hereunder; third, as the Company may request (so long as no Default exists), to the funding of any Advance in respect of which that Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, as the Company may request, to be held in a cash collateral account to cash collateralize such Defaulting Bank’s participations in Fronted Letters of Credit that are then outstanding; fifth, if so determined by the Administrative Agent and the Company, to be held in a cash collateral account and released in order to satisfy obligations of such Defaulting Bank to fund Advances under this Agreement; sixth, if so determined by the Administrative Agent and the Company, to be held in a cash collateral account to cash collateralize such Defaulting Bank’s participations in Fronted Letters of Credit, seventh, to the payment of any amounts owing to the Banks or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank or Issuing Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; eighth, so long as no Default exists, to the payment of any amounts owing to the Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; and ninth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Advance in respect of which such Defaulting Bank has not fully funded its appropriate share, and (y) such Advances were made or the related Fronted Letters of Credit were issued at a time when the applicable conditions set forth in Article V were satisfied or waived, such payment shall be applied solely to pay the Advances of all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Advances of such Defaulting Bank and provided further that any amounts held as cash collateral for funding obligations of a Defaulting Bank shall be returned to such Defaulting Bank upon the termination of this Agreement and the satisfaction of such Defaulting Bank’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section 2.07 shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
(h) The Commitment, Revolving Credit Exposure and LC Exposure of any Defaulting Bank shall not be included in determining whether the Majority Banks or any other requisite Banks have taken or may take any action hereunder or under any Note (including any consent to any amendment, waiver or other modification pursuant to Section 10.01); provided that any amendment, waiver or other modification requiring the consent of all Banks or all Banks affected thereby shall, except as otherwise provided in Section 10.01, require the consent of such Defaulting Bank in accordance with the terms hereof.
Appears in 2 contracts
Sources: Revolving Credit and Letter of Credit Agreement (Cigna Corp), Revolving Credit and Letter of Credit Agreement (Cigna Corp)
Defaulting Banks. Notwithstanding (a) In the event that, at any provision of this Agreement one time (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Loan to the contrary, if Company and (iii) the Company shall be required to make any Bank becomes a payment hereunder to or for the account of such Defaulting Bank, then the following provisions shall apply for Company may, so long as no Event of Default shall occur or be continuing at such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments time and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by applicable law, set off and otherwise apply the obligations of the Company to make such payment to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make such Defaulted Loan. In the event that, on any date, the Company shall so set off and otherwise apply its obligation to make any such payment against the obligation of such Defaulting Bank to make any such Defaulted Loan on or prior to such date, the amount so set off and otherwise applied by the Company shall constitute for all purposes of this Agreement a Loan by such Defaulting Bank made on the date of such setoff under the provision hereof pursuant to which such Defaulted Loan was originally required to have been made. Such Loan shall be considered, for all purposes of this Agreement, to comprise part of the Loan in connection with which such Defaulted Loan was originally required to have been made. The Company shall notify the Administrative Agent at any time the Company exercises its right of set-off pursuant to this subsection (a) and shall set forth in such notice (A) the name of the Defaulting Bank and the Defaulted Loan required to be made by such Defaulting Bank and (B) the amount set off and otherwise applied in respect of such Defaulted Loan pursuant to this subsection (a). Any portion of such payment otherwise required to be made by the Company to or for the account of such Defaulting Bank which is paid by the Company, after giving effect to the making amount set off and otherwise applied by the Company pursuant to this subsection (a), shall be applied by the Administrative Agent as specified in subsection (b) of payments from this Section 2.19.
(b) In the event that, at any one time, (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Amount to the Administrative Agent or any of the other Banks and (iii) the Company shall make any payment hereunder to the Administrative Agent for the account of such Defaulting Bank, then the Administrative Agent may, on its behalf or on behalf of such other Bank and to the fullest extent permitted by applicable law, apply at such time the amount so paid by the Company to time or for the account of such Defaulting Bank to the payment of each such Defaulted Amount to the extent required to pay such Defaulted Amount. In the event that the Administrative Agent shall so apply any such amount to the payment of any such Defaulted Amount on any date, the amount so applied by the Administrative Agent shall constitute for all purposes of this Agreement payment, to such extent, of such Defaulted Amount on such date. Any such amount so applied by the Administrative Agent shall be retained by the Administrative Agent or distributed by the Administrative Agent to such other Banks in the following order of priority: first first, to the payment of Administrative Agent for any amounts Defaulted Amounts then owing by such Defaulting Bank to the Agent under this Agreementit, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banksin its capacity as such, ratably among them in accordance with the amounts of such interest Defaulted Amounts then due and payable to them, third owing to the payment of fees Administrative Agent; and second, to any Bank for any Defaulted Amounts then due and payable owing to the Non-Defaulting Banks hereundersuch Bank, ratably among them in accordance with the amounts of such fees respective Defaulted Amounts then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise directBank.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of rights and remedies against a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or Section 2.19 are in addition to other amounts), provided rights and remedies that the Company may have against such termination will not be deemed Defaulting Bank with respect to be a waiver or release of any claim any Borrower, Defaulted Loan and that the Administrative Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting BankDefaulted Amount.
Appears in 2 contracts
Sources: Credit Agreement (Western Union CO), Credit Agreement (Western Union CO)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid facility fees shall cease to accrue, or to be payable by the Borrowers or otherwise received by Borrower, on the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount unfunded portion of the Commitment of a such Defaulting Bank upon not less than three (3pursuant to Section 2.09(a) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account or otherwise; provided, for the avoidance of principaldoubt, interestthat, fees, indemnity or other amounts), provided that to the extent Loans made by such termination will not be deemed to be a waiver or release of any claim any Defaulting Bank are repaid by the Borrower, the Agent no facility fees shall accrue or any Bank may have against be payable on that portion of such Defaulting Bank’s Commitment corresponding to such repaid amount;
(ii) Letter of Credit Fees shall cease to accrue, or to be payable by the Borrower, on the Pro Rata Share of a Letter of Credit of such Defaulting Bank pursuant to Section 2.09(c) for the account of such Defaulting Bank or otherwise;
(iii) the Commitment, Credit Exposure or Competitive Loans of such Defaulting Bank shall not be included in determining whether all Banks or the Required Banks have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.05); provided, however, that this clause (iii) shall not (subject to Section 9.05) apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification specifically requiring the consent of such Bank or each Bank affected thereby (and in circumstances where the consent of “all Banks” is required, such Defaulting Bank’s vote shall not be included except (A) such Defaulting Bank’s Commitment may not be increased or extended without its consent and (B) the principal amount of, or interest or fees payable on, Loans or L/C Borrowings may not be reduced or excused or the scheduled date of payment may not be postponed as to such Defaulting Bank without such Defaulting Bank’s consent); and
(div) if any L/C Obligation exists at the time such Bank becomes a Defaulting Bank then:
(A) provided that no Default or Event of Default exists, all or any part of such Defaulting Bank’s Pro Rata Share of the Outstanding Amount of all L/C Obligations shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Shares but only to the extent the aggregate principal amount of Revolving Loans of all non-Defaulting Bank’s plus such Defaulting Bank’s Pro Rata Share of the Outstanding Amount of all L/C Obligations do not exceed the total of all non-Defaulting Banks’ Commitments;
(B) if the reallocation described in clause (A) above cannot, or can only partially, be effected, the Borrower shall within one Domestic Business Day following notice by the Administrative Agent Cash Collateralize for the benefit of the Issuing Bank such Defaulting Bank’s Pro Rata Share of the Outstanding Amount of all L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.20(e)(i) for so long as such L/C Obligations are outstanding;
(C) if the Borrower Cash Collateralizes any portion of such Defaulting Bank’s L/C Obligations pursuant to clause (B) above, the Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.09(c) with respect to such L/C Obligations during the period such Defaulting Bank’s L/C Obligations are Cash Collateralized;
(D) if the L/C Obligations of the non-Defaulting Banks are reallocated pursuant to clause (A) above, then the fees payable to the Banks pursuant to Section 2.09(a) and Section 2.09(c) shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; and
(E) if all or any portion of such Defaulting Bank’s L/C Obligations are neither reallocated nor Cash Collateralized pursuant to clause (A) or (B) above, then, without prejudice to any rights or remedies of the Issuing Bank or any other Bank hereunder, all facility fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such L/C Obligations) and Letter of Credit Fees payable under Section 2.09(c) with respect to such Defaulting Bank’s L/C Obligations shall be payable to the Issuing Bank until and to the extent that such L/C Obligations are reallocated and/or Cash Collateralized; and
(b) 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 Defaulting Bank’s related exposure and its then outstanding L/C Advance will be 100% covered in accordance with the terms of this Agreement by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Borrower in accordance with Section 2.19(a)(iv), and participating interests in any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.19(a)(iv)(A) (and such Defaulting Bank shall not participate therein). In the event that the Borrowers Administrative Agent, the Borrower, and the Agent agree in writing in their discretion Issuing Bank each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify the parties hereto, whereupon as L/C Obligations of the effective Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Loans of the other Banks and/or make such other adjustments as the Administrative Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Loans in accordance with their respective Commitmentsits Pro Rata Share.
(c) At the Borrower’s option, whereupon the Borrower may elect to terminate the Commitment of any Defaulting Bank upon notice to such Bank will cease to be a Defaulting Bank and will be a Non-the Administrative Agent (irrespective of whether such Defaulting Bank (holds any outstanding Loans) and each such notice shall be effective upon receipt by both the Defaulting Bank and the Administrative Agent; provided that, for the avoidance of doubt, if such Defaulting Bank holds any Loans, and such Loans are not assigned pursuant to Section 2.18 or otherwise, then such Defaulting Bank shall continue to hold such Loans until such time as such Loans are repaid by the Borrower or assigned pursuant to this Agreement. Upon termination of a Bank’s ratable portion Commitment under this Section 2.19, the Borrower shall (x) to the extent applicable after giving effect to Section 2.19(a)(iv) and any Cash Collateral provided by the Defaulting Bank, Cash Collateralize such Defaulting Bank’s Pro Rata Share of the aggregate undrawn amount of all outstanding Advances will automatically Letters of Credit, (y) subject to Section 2.19(a), pay or cause to be adjusted on a prospective basis paid all accrued facility fees or Letter of Credit Fees payable to reflect such Bank and all other amounts due and payable to such Bank hereunder and (z) if such Bank is an Issuing Bank, the foregoing); provided that no adjustments will be made retroactively Borrower shall pay to the Administrative Agent for deposit an amount equal to the available amount of all Letters of Credit issued by such Issuing Bank, and upon such payments, the obligations of such Bank hereunder with respect to fees accrued or payments made by or on behalf of the Borrowers while such Bank was a Defaulting Bank; and providedunused Commitment which have been terminated shall, further, that except to the extent otherwise expressly agreed by the affected partiesprovisions hereof, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bankbe released and discharged.
Appears in 2 contracts
Sources: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/), Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Defaulting Banks. Notwithstanding any provision (a) If a Bank becomes, and during the period it remains, a Defaulting Bank, the following provisions shall apply:
(i) such Defaulting Bank’s Pro Rata Share of this Agreement the LC Obligations will, subject to the contrarylimitation in the proviso below, if any automatically be reallocated (effective on the day such Bank becomes a Defaulting Bank, then ) among the following provisions shall apply for so long as such Bank is a Non-Defaulting Banks pro rata in accordance with their respective Pro Rata Shares of the Commitment; provided that (A) the sum of each Non-Defaulting Bank:’s aggregate principal amount of Advances and Pro Rata Share of the LC Obligations may not in any event exceed the Pro Rata Share of the Commitment of such Non-Defaulting Bank as in effect at the time of such reallocation and (B) subject to Section 13.25, neither such reallocation nor any payment by a Non-Defaulting Bank pursuant thereto will constitute a waiver or release of any claim the Company, any other Borrower, the Administrative Agent, any Issuing Bank, or any other Bank may have against such Defaulting Bank or cause such Defaulting Bank to be a Non-Defaulting Bank;
(aii) Such to the extent that any portion (the “unreallocated portion”) of the Defaulting Bank will Bank’s share of the LC Obligations cannot be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights so reallocated, whether by reason of the Banks other proviso in clause (i) above or otherwise, the Borrowers will, not later than Defaulting Banks three Banking Days after demand by the Administrative Agent (at the direction of an Issuing Bank), (A) Cash Collateralize the obligations of the Borrowers in respect of such fees)LC Obligations in an amount equal to the aggregate amount of the unreallocated portion of such LC Obligations, or (B) make other arrangements satisfactory to the Administrative Agent and each Issuing Bank, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Bank;
(iiii) Any any amount paid by the Borrowers or otherwise received by the Administrative Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of principal, interest, fees, indemnity payments or other amounts not constituting principal or interestamounts) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Administrative Agent in a segregated non-interest bearing account until (subject to Section 2.18(d2.10(c)) the termination of the Commitments Commitment and payment in full of all obligations of the Borrowers hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent under this Agreement, second to the payment of any amounts owing by such Defaulting Bank to an Issuing Bank (pro rata as to the respective amounts owing to each of them) under this Agreement, third to the payment of post-default interest and then current interest due and payable to the Non-Banks hereunder other than Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third fourth to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth fifth to pay principal then due and payable to the Non-Defaulting Banks hereunder ratably in accordance with the amounts thereof then due and payable to them, sixth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth seventh after the termination of the Commitments Commitment and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) . Any amount payments, prepayments or other amounts paid by the Borrowers for the account of or payable to a Defaulting Bank representing principal that are applied (or interest payable held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section 2.10 shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto; and
(iv) so long as such Bank is a Defaulting Bank or a Potential Defaulting Bank, the Issuing Banks shall not be paid required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and such Defaulting Bank in the same amounts and in the same manner as if Bank’s or such Defaulting Bank were a Non-Potential Defaulting Bank;
(c) The Borrowers may terminate ’s Pro Rata Share of the unused amount then outstanding LC Obligations will be 100% covered by the Pro Rata Shares of the Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by the Borrowers in accordance with Section 2.10(a)(ii), and participating interests in any newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Banks in a manner consistent with Section 2.10(a)(i) (and such Defaulting Bank or Potential Defaulting Bank shall not participate therein). In furtherance of the foregoing, if any Bank becomes, and during the period it remains, a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent or a Potential Defaulting Bank, each Issuing Bank is hereby authorized by each Borrower (which will promptly notify authorization is irrevocable and coupled with an interest) to give, in its discretion, through the Banks thereof)Administrative Agent, a Request for Loan pursuant to Section 8.2 in such amounts and in such event times as may be required to (i) reimburse an outstanding drawing under a Letter of Credit, and/or (ii) Cash Collateralize the provisions obligations of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for in respect of outstanding Letters of Credit in an amount at least equal to the account aggregate amount of the obligations (contingent or otherwise) of such Defaulting Bank or Potential Defaulting Bank in respect of such Letter of Credit.
(b) No Pro Rata Share of the Commitment of any Bank shall be increased or, except as otherwise expressly provided in this Section 2.10, otherwise affected, and performance by each Borrower of its obligations shall not be excused or otherwise modified as a result of the operation of this Section 2.10. The rights and remedies against a Defaulting Bank under this Agreement (whether on account of principalSection 2.10 are in addition to any other rights and remedies which the Company, interest, fees, indemnity or any other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent Administrative Agent, any Issuing Bank or any Bank may have against such Defaulting Bank; and.
(dc) In If the event that the Borrowers Company and the Administrative Agent agree in writing in their discretion reasonable determination that a Defaulting Bank is or a Potential Defaulting Bank should no longer be deemed to be a Defaulting Bank or a Potential Defaulting Bank, as the case may be, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)cash collateral), such that Bank will, to the extent applicable, purchase at par such that portion of outstanding Advances of the other Banks and/or make or take such other adjustments actions as the Administrative Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks Advances to be funded and held on a pro rata basis by the Banks in accordance with their respective CommitmentsPro Rata Share, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-or Potential Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 or Potential Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank or Potential Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Amgen Inc), Credit Agreement (Amgen Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such fees shall cease to accrue on the unused portion of the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such feessubsection 2.4(a);
(b) the Commitment and Aggregate Outstanding Extensions of Credit of such Defaulting Bank shall not be included in determining whether all Banks, all affected Banks or the Required Banks have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to subsection 10.1); provided that (i) Any such Defaulting Bank’s Commitment may not be increased or extended without its consent and (ii) the principal amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal of, or interest or fees payable on, Loans may not be reduced or excused or the scheduled date of payment may not be postponed as to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to without such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.’s consent;
(iic) Any amount paid by if any L/C Exposure exists at the Borrowers for the account of time such Bank becomes a Defaulting Bank representing principal then:
(i) all or interest payable to any part of the L/C Exposure of such Defaulting Bank shall be paid to such Defaulting Bank in reallocated among the same amounts and in the same manner as if such Defaulting Bank were a Nonnon-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitment Percentages but only to the extent the sum of all non-Defaulting Banks’ Aggregate Outstanding Extensions of Credit plus such Defaulting Bank’s L/C Exposure does not exceed the total of all non-Defaulting Banks’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, whereupon or can only partially, be effected, the Company shall within one Business Day following notice by the Agent cash collateralize for the benefit of the Issuing Banks only the Company’s obligations corresponding to such Defaulting Bank’s L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in subsection 8.1 for so long as such L/C Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s L/C Exposure pursuant to clause (ii) above, the Company shall not be required to pay any fees to such Defaulting Bank pursuant to subsection 3.3(a) with respect to such Defaulting Bank’s L/C Exposure during the period such Defaulting Bank’s L/C Exposure is cash collateralized;
(iv) if the L/C Exposure of the non-Defaulting Banks is reallocated pursuant to clause (i) above, then the fees payable to the Banks pursuant to subsection 2.4(a) and subsection 3.3(a) shall be adjusted in accordance with such non-Defaulting Banks’ Commitment Percentages; and
(v) if all or any portion of such Defaulting Bank’s L/C Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Issuing Banks or any other Bank hereunder, all fees payable under subsection 3.3(a) with respect to such Defaulting Bank’s L/C Exposure shall be payable to the applicable Issuing Bank until and to the extent that such L/C Exposure is reallocated and/or cash collateralized;
(d) so long as such Bank is a Defaulting Bank, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the Defaulting Bank’s then outstanding L/C Exposure will cease be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with subsection 2.20(c), and participating interests in any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with subsection 2.20(c)(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 any Bank shall occur following the date hereof and for so long as such event shall continue, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless such Issuing Bank shall have entered into arrangements with the Company or such Bank, satisfactory to such Issuing Bank, to defease any risk to it in respect of such Bank hereunder; and
(e) in the event that the Agent, the Company and the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank and will Bank, then the L/C Exposure of the Banks shall be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis readjusted to reflect the foregoing)inclusion of such Bank’s 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 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 Company while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Humana Inc), Credit Agreement (Humana Inc)
Defaulting Banks. Notwithstanding anything contained in Sections 2.8, 2.9 or any other provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as Bank then: all Letters of Credit Outstanding and Swing Loans outstanding at such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Bankstime, and fifth after the termination all Letters of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank Credit issued or as Swing Loans made while there exists a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid reallocated among the non-Defaulting Banks in accordance with their respective Ratable Shares (such Ratable Shares shall be determined without reference to each Defaulting Bank’s Ratable Share) so long as no Potential Default (other than a Potential Default in respect of any Aerostructures Filing Event of Default) or Event of Default (other than any Aerostructures Filing Event of Default) exists on the date of reallocation and thereafter continues uncured, but only to the extent (a) the sum of all non-Defaulting Banks’ Revolving Credit Loans then outstanding plus the sum of such non-Defaulting Banks’ Ratable Share of the Dollar Equivalent of all Swing Loans then outstanding and Letters of Credit Outstanding at such time does not exceed the total of all non-Defaulting Banks’ Revolving Credit Commitments and (b) the aggregate obligation of each non-Defaulting Bank to acquire, refinance or fund any participations in the Defaulting Bank’s portion of Letters of Credit Outstanding and Swing Loans pursuant to reallocation contemplated above shall not exceed the positive difference between (i) the Revolving Credit Commitment of such Bank minus (ii) such Bank’s Revolving Credit Loans then outstanding plus such Bank’s Ratable Share of the Dollar Equivalent of all Swing Loans then outstanding and Letters of Credit Outstanding at such time. If the reallocation described in the preceding sentence cannot, or can only partially, be effected, the Borrowers shall within one Business Day following notice by the Administrative Agent, (1) first, prepay outstanding Swing Loans and (2) second, cash collateralize such Defaulting Bank Bank’s portion of Letters of Credit Outstanding (in each case, after giving effect to any partial reallocation pursuant the same amounts immediately preceding sentence). To the extent such Letters of Credit Outstanding and Swing Loans are reallocated pursuant to this Section 2.14, then the fees payable to the Banks pursuant to Section 2.8.2 (but not Section 2.3) shall be adjusted in the same manner as if accordance with such Defaulting Bank were a Nonnon-Defaulting Bank;
(c) The Borrowers may terminate Banks’ Ratable Shares. To the unused amount extent a portion of the Commitment Defaulting Bank’s Letters of a Defaulting Bank upon not less than three Credit outstanding are cash collateralized pursuant to clause (32) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof)above, and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers shall not be obligated to pay any fees to or for the account of such Defaulting Bank under pursuant to Section 2.8.2 with respect to such Defaulting Bank’s Letter of Credit Outstandings during the period such Defaulting Bank’s Letter of Credit Outstandings are cash collateralized. To the extent such Letters of Credit Outstanding are not reallocated pursuant to this Agreement (whether on account Section 2.14, or the Defaulting Bank’s Ratable Share of principalLetters of Credit Outstanding have not been cash collateralized, interestthen, fees, indemnity without prejudice to any rights or other amounts), provided that such termination will not be deemed to be a waiver or release remedies of any claim any Borrower, the Agent Issuing Bank or any Bank may hereunder, all Commitment Fees that otherwise would have against been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank; and
(d’s Commitment that was utilized by such Letters of Credit Outstanding) and Letter of Credit Fees with respect to such Defaulting Bank’s Ratable Share of the Letters of Credit Outstanding shall be payable to the Issuing Bank. Subject to Section 11.23, nothing contained in this Section or elsewhere in this Agreement and no reallocation of any Defaulting Bank’s Ratable Share of any obligation hereunder shall relieve such Defaulting Bank of its obligation to fund any portion of any amount owed by such Defaulting Bank hereunder. In the event that the Borrowers Administrative Agent, the Borrower, and the Agent Issuing Banks each agree in writing in their discretion that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify Letters of Credit Outstanding and the parties hereto, whereupon as Swing Loans outstanding shall be readjusted to reflect the inclusion of the effective date specified in such notice Bank’s Revolving Credit Commitment and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b))on such date, such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Loans of the other Banks and/or make such other adjustments as the Administrative Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Loans in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bankits Ratable Share.
Appears in 2 contracts
Sources: Credit Agreement (Triumph Group Inc), Credit Agreement (Triumph Group Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement Anything contained herein to the contrarycontrary notwithstanding, if in the event that any Bank becomes Bank, other than at the direction or request of any regulatory agency or authority, defaults (a “Defaulting Bank”) in its obligation to fund (a “Funding Default”) any Revolving Loan or its portion of any unreimbursed payment under Section 2.2(b)(iv) or 2.4(e) (in each case, a “Defaulted Loan”), then (a) during any Default Period with respect to such Defaulting Bank, then such Defaulting Bank shall be deemed not to be a “Bank” for purposes of voting on any matters (including the following provisions granting of any consents or waivers) with respect to any of the Credit Documents; (b) to the extent permitted by applicable law, until such time as the Default Excess with respect to such Defaulting Bank shall apply for have been reduced to zero, (i) any voluntary prepayment of the Revolving Loans shall, if a Borrower so long directs at the time of making such voluntary prepayment, be applied to the Revolving Loans of other Banks as if such Defaulting Bank is had no Revolving Loans outstanding and the Revolving Exposure of such Defaulting Bank were zero, and (ii) any mandatory prepayment of the Revolving Loans shall, if a Borrower so directs at the time of making such mandatory prepayment, be applied to the Revolving Loans of other Banks (but not to the Revolving Loans of such Defaulting Bank:
(a) Such as if such Defaulting Bank will had funded all Defaulted Loans of such Defaulting Bank, it being understood and agreed that such Borrower shall be entitled to retain any portion of any mandatory prepayment of the Revolving Loans that is not paid to such Defaulting Bank solely as a result of the operation of the provisions of this clause (b); (c) such Defaulting Bank’s Revolving Commitment and outstanding Revolving Loans and such Defaulting Bank’s Pro Rata Share of the Letter of Credit Usage shall be excluded for purposes of calculating the Revolving Commitment fee payable to Banks in respect of any day during any Default Period with respect to such Defaulting Bank, and such Defaulting Bank shall not be entitled to receive any fees accruing during such period Revolving Commitment fee pursuant to Section 2.04 (without prejudice 2.11 with respect to the rights of the Banks other than such Defaulting Banks Bank’s Revolving Commitment in respect of any Default Period with respect to such fees);
Defaulting Bank; and (id) Any amount paid by the Borrowers Total Utilization of Revolving Commitments as at any date of determination shall be calculated as if such Defaulting Bank had funded all Defaulted Loans of such Defaulting Bank. No Revolving Commitment of any Bank shall be increased or otherwise received affected, and, except as otherwise expressly provided in this Section 2.23, performance by each Borrower of its obligations hereunder and the Agent for other Credit Documents shall not be excused or otherwise modified as a result of any Funding Default or the account operation of this Section 2.23. The rights and remedies against a Defaulting Bank under this Agreement Section 2.23 are in addition to other than any amounts representing principal or interest payable to rights and remedies which each Borrower may have against such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed with respect to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments any Funding Default and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Administrative Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting BankFunding Default.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Xerium Technologies Inc), Credit and Guaranty Agreement (Xerium Technologies Inc)
Defaulting Banks. Notwithstanding (a) In the event that, at any provision one time, (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Amount to any Agent or any of this Agreement the other Banks and (iii) any Account Party shall make any payment hereunder or under any other Loan Document to the contrary, if any Bank becomes a Administrative Agent for the account of such Defaulting Bank, then the following provisions shall Administrative Agent may, on its behalf or on behalf of such other Banks and to the fullest extent permitted by applicable law, apply at such time the amount so paid by such Account Party to or for so long as the account of such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights payment of each such Defaulted Amount to the Banks extent required to pay such Defaulted Amount. In the event that the Administrative Agent shall so apply any such amount to the payment of any such Defaulted Amount on any date, the amount so applied by the Administrative Agent shall constitute for all purposes of this Agreement and the other than Defaulting Banks in respect Loan Documents payment, to such extent, of such fees);Defaulted Amount on such date. Any such amount so applied by the Administrative Agent shall be retained by the Administrative Agent or distributed by the Administrative Agent to such other Banks, ratably in accordance with the respective portions of such Defaulted Amounts payable at such time to the Administrative Agent and such other Banks and, if the amount of such payment made by such Account Party shall at such time be insufficient to pay all Defaulted Amounts owing at such time to the Administrative Agent, such other Agents and such other Banks, in the following order of priority:
(i) first, to the Agents for any Defaulted Amounts then owing to the Agents;
(ii) second, to the Issuing Bank for any amount then due and payable to it, in its capacity as such, by such Defaulting Bank, ratably in accordance with such amounts then due and payable to the Issuing Bank; and
(iii) third, to any other Banks for any Defaulted Amounts then owing to such other Banks, ratably in accordance with such respective Defaulted Amounts then owing to such other Banks. Any portion of such amount paid by the Borrowers or otherwise received by the Agent such Account Party for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank remaining, after giving effect to the amount applied by the Administrative Agent pursuant to this subsection (whether on a), shall be applied by the Administrative Agent as specified in subsection (b) of this Section 2.11.
(b) In the event that, at any one time, (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall not owe a Defaulted Amount and (iii) any Account Party, any Agent or other Bank shall be required to pay or distribute any amount hereunder or under any other Loan Document to or for the account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead then such Account Party or such Agent or such other Bank shall pay such amount to the Administrative Agent to be retained held by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by applicable law, in escrow and the Administrative Agent shall, to the making fullest extent permitted by applicable law, hold in escrow such amount otherwise held by it. Any funds held by the Administrative Agent in escrow under this subsection (b) shall be deposited by the Administrative Agent in an account with Wachovia in the name and under the control of payments the Administrative Agent, but subject to the provisions of this subsection (b). The terms applicable to such account, including the rate of interest payable with respect to the credit balance of such account from time to time, shall be Wachovia's standard terms applicable to escrow accounts maintained with it. Any interest credited to such account from time to time shall be held by the Administrative Agent in escrow under, and applied by the Administrative Agent from time to time in accordance with the provisions of, this subsection (b). The Administrative Agent shall, to the fullest extent permitted by applicable law, apply all funds so held in escrow from time to time to the extent necessary to make any Advances required to be made by such Defaulting Bank and to pay any amount payable by such Defaulting Bank hereunder and under the other Loan Documents to the Administrative Agent or any other Bank, as and when such Advances or amounts are required to be made or paid and, if the amount so held in escrow shall at any time be insufficient to make and pay all such Advances and amounts required to be made or paid at such time, in the following order of priority: first :
(i) first, to the payment of Agents for any amounts owing then due and payable by such Defaulting Bank to the Agent under this AgreementAgents hereunder;
(ii) second, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest Issuing Bank for any amount then due and payable to themit, third to the payment of fees then due and payable to the Non-in its capacity as such, by such Defaulting Banks hereunderBank, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-such Issuing Bank; and
(iii) third, to any other Banks for any amount then due and payable by such Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers Bank to such other Banks hereunder, ratably in accordance with such respective amounts then due and payable to pay amounts such other Banks. In the event that any Bank that is a Defaulting Bank shall, at any time, cease to be a Defaulting Bank, any funds held by the Administrative Agent in escrow at such time with respect to such Bank shall be distributed by the Administrative Agent to such Bank and applied by such Bank to the obligations owing to such Bank at such time under this Agreement to and the other Loan Documents ratably in accordance with the respective amounts of such Defaulting Bank or as a court of competent jurisdiction may otherwise directobligations outstanding at such time.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of rights and remedies against a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or Section 2.11 are in addition to other amounts), provided rights and remedies that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting BankDefaulted Amount.
Appears in 2 contracts
Sources: Reimbursement Agreement (Ace LTD), Reimbursement Agreement (Ace LTD)
Defaulting Banks. Notwithstanding (a) If for any provision of this Agreement to the contrary, if reason any Bank becomes a Defaulting Bank, then in addition to the rights and remedies that may be available to the Administrative Agent and the Banks at law or in equity, the Defaulting Bank’s right to participate in the Loan and the Agreement will be suspended during the pendency of the Defaulting Bank’s uncured default, and (without limiting the foregoing) the Administrative Agent may (or at the direction of the Required Banks, shall) withhold from the Defaulting Bank any interest payments, fees, principal payments or other sums otherwise payable to such Defaulting Bank under the Loan Documents until such default of such Defaulting Bank has been cured. Each Non-Defaulting Bank will have the right, but not the obligation, in its sole discretion, to acquire at par a proportionate share (based on the ratio of its Pro Rata Share of the Commitment to the aggregate amount of the Pro Rata Shares of the Commitments of all of the Non-Defaulting Banks that elect to acquire a share of the Defaulting Bank’s Pro Rata Share of the Commitment) of the Defaulting Bank’s Pro Rata Share of the Commitment, including its proportionate share in the outstanding principal balance of the Loans. The Defaulting Bank will pay and protect, defend and indemnify the Administrative Agent and each of the other Banks and Issuing Banks against, and hold the Administrative Agent, and each of the other Banks and Issuing Banks harmless from, all claims, actions, proceedings, liabilities, damages, losses, and expenses (including Attorney Costs, and interest at the Base Rate plus 2.0% per annum for the funds advanced by the Administrative Agent or any Banks on account of the Defaulting Bank) they may sustain or incur by reason of or in consequence of the Defaulting Bank’s failure or refusal to perform its obligations under the Loan Documents. The Administrative Agent may set off against payments due to the Defaulting Bank for the claims of the Administrative Agent and the other Banks against the Defaulting Bank. The exercise of these remedies will not reduce, diminish or liquidate the Defaulting Bank’s Pro Rata Share of the Commitment (except to the extent that part or all of such Pro Rata Share of the Commitment is acquired by the other Banks as specified above) or its obligations to share losses and reimbursement for costs, liabilities and expenses under this Agreement. This indemnification will survive the payment and satisfaction of all of the Borrower’s obligations and liabilities to the Banks and the Issuing Banks. The foregoing provisions of this Section 10.13 are solely for the benefit of the Administrative Agent and the Banks, and may not be enforced or relied upon by the Borrower;
(b) If a Bank becomes, and during the period it remains, a Defaulting Bank, the following provisions shall apply for so long as such Bank is a Defaulting Bankapply:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any any L/C Advance of such Defaulting Bank not funded by such Defaulting Bank will, upon notice by the Administrative Agent, and subject in any event to the limitation in the first proviso below, automatically be reallocated (effective on the day such Bank becomes a Defaulting Bank) among the Non-Defaulting Banks pro rata in accordance with their respective Commitments; provided that (a) the sum of the Exposure of each Non-Defaulting Bank may not in any event exceed the Non-Defaulting Bank’s Pro Rata Share of the Commitment as in effect at the time of such reallocation, (b) subject to Section 11.30, such reallocation will not constitute a waiver or release of any claim the Borrower, the Administrative Agent, any Issuing Bank or any other Bank may have against such Defaulting Bank, and (c) neither such reallocation nor any payment by a Non-Defaulting Bank as a result thereof will cause such Defaulting Bank to be a Non-Defaulting Bank;
(ii) to the extent that any portion (the “unreallocated portion”) of the Defaulting Bank’s L/C Advance cannot be so reallocated, whether by reason of the first proviso in clause (i) above or otherwise, the Borrower will, not later than 1 Business Day after demand by the Administrative Agent, (a) Cash Collateralize the obligations of the Borrower to the Issuing Bank in respect of the unallocated portion of such L/C Advance, as the case may be, in an amount at least equal to 101% of the aggregate amount of the unreallocated portion of such L/C Advance (excluding any portion of such amount that is already Cash Collateralized by operation of another provision of this Agreement), or (b) make other arrangements satisfactory to the Administrative Agent and the Issuing Bank in their sole discretion to protect them against the risk of non-payment by such Defaulting Bank; and
(iii) any amount paid by the Borrowers or otherwise received by the Agent Borrower for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of principal, interest, fees, indemnity payments or other amounts not constituting principal or interestamounts) will not be paid or distributed to such Defaulting Bank, but will shall instead be retained by the Administrative Agent in a segregated non-interest bearing escrow account until (subject to Section 2.18(d)) such Defaulting Bank is no longer a Defaulting Bank or the termination of the Commitments and payment in full of all obligations of the Borrowers Borrower hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first First to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent under this Agreement, second to the payment of any amounts owing by such Defaulting Bank to the Issuing Bank (pro rata as to the respective amounts owing to each of them) under this Agreement, third to the payment of post-default interest and then current interest due and payable to the Non-Defaulting BanksBanks hereunder, ratably among them in accordance with the amounts of such interest then due and payable to them, third fourth to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth fifth to pay principal and unreimbursed L/C Borrowings then due and payable to the Non-Defaulting Banks hereunder ratably in accordance with the amounts thereof then due and payable to them, sixth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth seventh after the termination of the Commitments and payment in full of all obligations of the Borrowers Borrower hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by , and eighth the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice remainder to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting BankPerson entitled thereto.
Appears in 2 contracts
Sources: Revolving Loan Agreement (Kb Home), Revolving Loan Agreement (Kb Home)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Commitment Fees shall cease to accrue on the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees2.10(a);
(ib) Any the Commitment and the outstanding principal amount paid of Term Loans held by such Defaulting Bank shall not be included in determining whether the Borrowers Required Banks have taken or otherwise received by may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.05); provided that this clause (b) shall not apply to the Agent for the account vote of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account in the case of feesan amendment, indemnity payments waiver or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by modification requiring the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts consent of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting each Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bankaffected thereby;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof)may, and in such event the provisions of Section 2.18(b) will its discretion, apply to all amounts thereafter paid by the Borrowers or hold payments for the account of such Defaulting Bank as set forth in Section 2.13(e);
(d) [Reserved].
(e) the Company may, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank, at the expense of such Defaulting Bank, to assign, without recourse (in accordance with and subject to the restrictions contained in Section 10.06), all its interests, rights and obligations under this Agreement by such Defaulting Bank to any Person that shall assume such obligations (whether on account which Assignee may be another Bank, if it accepts such assignment) with (and subject to) the consent of principal, interest, fees, indemnity or other amountsthe Administrative Agent (which consent shall not unreasonably be withheld), ; provided that such termination will not be deemed Defaulting Bank shall have received payment of an amount equal to be a waiver the principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such Loans and accrued interest and fees) or release the Company (in the case of any claim any Borrowerall other amounts) (provided that the Company may deduct, or cause such assignee to deduct, from amounts payable by them or it, as applicable, to such Bank hereunder all fees, costs and expenses reasonably incurred by the Agent or any Bank may have against Company in effecting such Defaulting Bankassignment); and
(df) In in the event that the Borrowers Administrative Agent and the Agent agree in writing in their discretion Company each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will shall cease to be a Defaulting Bank and will the Applicable Percentage of the Banks shall be a Non-Defaulting Bank readjusted as follows:
(and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively i) with respect to fees accrued or payments made by or on behalf any Loans then outstanding, such Bank shall purchase at par such of the Borrowers while Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected partieshold such Loans in accordance with its Applicable Percentage. Subject to Section 10.16, no change hereunder from Defaulting Bank to Non-Defaulting Bank will readjustment under this Section 2.17(f) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Bank arising from such Bank’s that Bank having been 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.
Appears in 2 contracts
Sources: Term Loan Agreement (AXA Equitable Holdings, Inc.), Term Loan Agreement (AXA Equitable Holdings, Inc.)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d2.17(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;; Caterpillar: Confidential Green 62
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b2.17(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b2.17(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.by
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Caterpillar Inc), Credit Agreement (Caterpillar Financial Services Corp)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such fees shall cease to accrue on the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees2.6(a);
(b) the Commitment and Aggregate Outstanding Extensions of Credit of such Defaulting Bank shall not be included in determining whether all Banks, all affected Banks or the Required Banks have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided, that (i) Any such Defaulting Bank’s Commitment may not be increased or extended without its consent and (ii) the principal amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal of, or interest or fees payable on, Loans may not be reduced or excused or the scheduled date of payment may not be postponed as to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to without such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.’s consent;
(iic) Any amount paid by if any Swingline Exposure or L/C Exposure exists at the Borrowers for the account of time such Bank becomes a Defaulting Bank representing principal then:
(1) all or interest payable to any part of the Swingline Exposure and L/C Exposure of such Defaulting Bank shall be paid reallocated among the non-Defaulting Banks in accordance with their respective Commitment Percentages but only to the extent the sum of all non-Defaulting Banks’ Aggregate Outstanding Extensions of Credit plus such Defaulting Bank’s Swingline Exposure and L/C Exposure does not exceed the total of all non-Defaulting Banks’ Commitments;
(2) if the reallocation described in clause (1) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the benefit of the Issuing Bank only the Company’s obligations corresponding to such Defaulting Bank’s L/C Exposure (after giving effect to any partial reallocation pursuant to clause (1) above) in accordance with the procedures set forth in Section 8.1 for so long as such L/C Exposure is outstanding;
(3) if the Company cash collateralizes any portion of such Defaulting Bank’s L/C Exposure pursuant to clause (2) above, the Company shall not be required to pay any fees to such Defaulting Bank in the same amounts and in the same manner as if pursuant to Section 3.3(a) with respect to such Defaulting Bank were a Non-Bank’s L/C Exposure during the period such Defaulting Bank’s L/C Exposure is cash collateralized;
(c4) The Borrowers may terminate if the unused amount L/C Exposure of the Commitment of a non-Defaulting Bank upon not less than three Banks is reallocated pursuant to clause (31) Business Days’ prior notice above, then the fees payable to the Agent Banks pursuant to Section 2.6(a) and Section 3.3(a) shall be adjusted in accordance with such non-Defaulting Banks’ Commitment Percentages; and
(which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b5) will apply to if all amounts thereafter paid by the Borrowers for the account or any portion of such Defaulting Bank’s L/C Exposure is neither reallocated nor cash collateralized pursuant to clause (1) or (2) above, then, without prejudice to any rights or remedies of the Issuing Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any other Bank may have against hereunder, all fees payable under Section 3.3(a) with respect to such Defaulting Bank’s L/C Exposure shall be payable to the Issuing Bank until and to the extent that such L/C Exposure is reallocated and/or cash collateralized; and
(d) so long as such Bank is a Defaulting Bank, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Bank’s then outstanding L/C Exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with Section 2.22(c), and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.22(c)(1) (and such Defaulting Bank shall not participate therein). If a Bankruptcy Event with respect to a Bank Parent of any Bank shall occur following the date hereof and for so long as such event shall continue, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swingline Lender or the Issuing Bank, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to the Swingline Lender or the Issuing Bank, as the case may be, to defease any risk to it in respect of such Bank hereunder. In the event that the Borrowers Agent, the Company, the Swingline Lender and the Agent agree in writing in their discretion Issuing Bank each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify the parties hereto, whereupon as Swingline Exposure and L/C Exposure of the effective Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Loans of the other Banks and/or make such (other adjustments than CAF Loans and Swingline Loans) as the Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Loans in accordance with their respective Commitmentsits Commitment Percentage; provided, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Company while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Humana Inc), Credit Agreement (Humana Inc)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement anything to the contrarycontrary contained herein, if the Maximum Credit Amount of a Defaulting Bank shall not be included in determining whether all Banks, the Super Majority Banks or the Required Banks have taken or may take any action hereunder (including approval of any redetermination of the Borrowing Base pursuant to Article IV and any consent to any amendment or waiver pursuant to Section 14.2); provided that, any waiver, amendment or modification requiring the consent of all Banks or each affected Bank becomes a which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank; and provided further that in no event shall (i) the Commitment, Elected Commitment or Maximum Credit Amount of any Defaulting Bank be increased without the consent of such Defaulting Bank, then or (ii) the following provisions shall apply Termination Date or any date fixed for so long as any payment of principal of or interest on the Loan or any fees hereunder be postponed without the consent of such Bank is a Defaulting Bank:.
(b) If any Bank shall fail to make any payment referenced in clause (a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than definition of “Defaulting Banks Bank”, then the Administrative Agent may, in respect of such fees);
its discretion and notwithstanding any contrary provision hereof, (i) Any amount paid by the Borrowers or otherwise apply any amounts thereafter received by the Administrative Agent for the account of a Defaulting such Bank under this Agreement other than and for the benefit of the Administrative Agent or any Letter of Credit Issuer to satisfy such Bank’s obligations hereunder until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until as cash collateral for, and application to, any future funding obligations of such Bank hereunder; in the case of each of (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion; provided that, subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties14.17, no change reallocation hereunder from Defaulting Bank to Non-Defaulting Bank will shall constitute a waiver or release of any claim of any party hereunder arising from against such Bank as a result of such Bank’s having been increased exposure following such reallocation.
(c) Borrower shall not be obligated to pay the Administrative Agent any Defaulting Bank’s ratable share of the fees described in Sections 2.11, 2.12 or 2.13 (notwithstanding anything to the contrary in such sections) for the period commencing on the day such Defaulting Bank becomes a Defaulting Bank and continuing for so long as such Bank continues to be a Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Laredo Petroleum, Inc.), Credit Agreement (Laredo Petroleum, Inc.)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long then, until such time as such that Bank is no longer a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice , to the rights of the Banks other than Defaulting Banks in respect of such fees);extent permitted by applicable Law:
(i) Such Defaulting Bank’s right to approve or disapprove any amendment, waiver of consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Banks” and Section 9.05.
(ii) Any amount paid by the Borrowers payment of principal, interest, fees or otherwise other amounts received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesvoluntary or mandatory, indemnity payments at maturity, pursuant to Article VI or other amounts not constituting principal otherwise) or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained received by the Agent in from a segregated non-interest bearing account until (subject Defaulting Bank pursuant to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will 9.04 shall be applied at such time or times as may be determined by the AgentAgent as follows: first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; third, if so determined by the Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Bank’s potential future funding obligations with respect to Loans under this Agreement; fourth, second to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank against such Defaulting Banks, ratably among them in accordance with the amounts Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement; fifth, third so long as no Default or Event of Default exists, to the payment of fees then due and payable any amounts owing to the Non-Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Banks hereunder, ratably among them in accordance with the amounts Bank as a result of such fees then due and payable to them, fourth to the ratable payment Defaulting Bank’s breach of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all its obligations of the Borrowers hereunder, to pay amounts owing under this Agreement Agreement; and sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise direct.
jurisdiction; provided that if (iix) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Bank has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Bank until such time as all Loans are funded pro rata in accordance with the Commitments hereunder without giving effect to Section 2.15(a)(iv). Any amount payments, prepayments or other amounts paid by the Borrowers for the account of or payable to a Defaulting Bank representing principal that are applied (or interest payable held) to such pay amounts owed by a Defaulting Bank shall be deemed paid to and redirected by such Defaulting Bank in the same amounts Bank, and in the same manner as if such each Lender irrevocably consents hereto.
(iii) Each Defaulting Bank were shall be entitled to receive fees payable under Sections 2.07 for any period during which that Bank is a Non-Defaulting Bank;
(c) The Borrowers may terminate Bank only to extent allocable to the unused outstanding principal amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid Loans funded by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; andit.
(db) In If the event that the Borrowers Borrower and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b))therein, such that Bank will, to the extent applicable, purchase at par such that portion of outstanding Advances Loans of the other Banks and/or make or take such other adjustments actions as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks Loans to be held on a pro rata basis by the Lenders in accordance with their respective CommitmentsCommitment Percentages, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Borrower while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such that Bank’s having been a Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Invesco Senior Income Trust), Credit Agreement (Invesco Dynamic Credit Opportunities Fund)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such facility fees shall cease to accrue on the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees2.10(a);
(ib) Any amount paid by the Borrowers Commitment and Credit Exposure of such Defaulting Bank shall not be included in determining whether the Required Banks have taken or otherwise received by may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.05); provided that this clause (b) shall not apply to the Agent for the account vote of a Defaulting Bank under this Agreement in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank affected thereby;
(c) with respect to any Fronted LC Exposure (if any):
(i) all or any part of the Fronted LC Exposure of such Defaulting Bank (other than such Fronted LC Exposure that is cash collateralized pursuant to Section 2.16(b)) shall be reallocated among the Non-Defaulting Banks in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all Non-Defaulting Banks' Credit Exposures plus such Defaulting Bank's LC Exposure does not exceed the total of all Non-Defaulting Banks' Commitments and (y) such reallocation does not, as to any amounts representing principal non-Defaulting Bank, cause such non-Defaulting Bank's Credit Exposure to exceed its Commitment (and, if such reallocation can only partially be effected, such reallocation shall be made ratably among the then outstanding Fronted Letters of Credit, unless otherwise agreed by the Fronting Issuing Banks and the Administrative Agent);
(ii) if the reallocation described in clause (i) above cannot, or interest can only partially, be effected, the relevant Account Party under each outstanding Fronted Letter of Credit shall within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the applicable Fronting Issuing Bank only such Account Party's obligations in respect thereof corresponding to such Defaulting Bank's Fronted LC Exposure thereunder (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.03(e) for so long as such Fronted LC Exposure is outstanding;
(iii) if the Account Parties cash collateralizes any portion of such Defaulting Bank's Fronted LC Exposure pursuant to clause (ii) above, the Company shall not be required to pay any letter of credit fees to such Defaulting Bank pursuant to Section 2.10(b) with respect to such Defaulting Bank's Fronted LC Exposure during the period and to the extent that such Defaulting Bank's Fronted LC Exposure is cash collateralized;
(iv) if the Fronted LC Exposure of the Non-Defaulting Banks is reallocated pursuant to clause (i) above, then the letter of credit fees payable to the Banks pursuant to Section 2.10(b) shall be adjusted in accordance with such Non-Defaulting Banks' Applicable Percentages;
(v) if all or any portion of such Defaulting Bank's Fronted LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any applicable Fronting Issuing Bank or any other Bank hereunder, all facility fees that otherwise would have been payable to such Defaulting Bank (whether on account solely with respect to the portion of fees, indemnity payments or other amounts not constituting principal or interestsuch Defaulting Bank's Commitment that was utilized by such Fronted LC Exposure) will not be paid or distributed and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Bank's Fronted LC Exposure shall be payable to the applicable Fronting Issuing Banks until and to the extent that such Fronted LC Exposure is reallocated and/or cash collateralized;
(vi) so long as such Bank is a Defaulting Bank, but no Fronting Issuing Bank shall be required to issue, amend or increase any Fronted Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Bank's then outstanding Fronted LC Exposure will instead be retained 100% covered by the Agent Commitments of the Non-Defaulting Banks and/or cash collateral will be provided by the Account Parties in accordance with Section 2.17(c), and participating interests in any newly issued or increased Fronted Letter of Credit shall be allocated among Non-Defaulting Banks in a segregated manner consistent with Section 2.17(c)(i) (and such Defaulting Bank shall not participate therein); and
(vii) if (i) a Bankruptcy Event or a Bail-In Action with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any Fronting Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such Fronting Issuing Bank shall not be required to issue, amend or increase any Fronted Letter of Credit, unless such Fronting Issuing Bank shall have entered into arrangements with the Account Parties or such Bank, satisfactory to such Fronting Issuing Bank, to defease any risk to it in respect of such Bank hereunder;
(d) with respect to any Syndicated LC Exposure (if any):
(i) letter of credit fees shall cease to accrue on such Defaulting Bank's Syndicated LC Exposure pursuant to Section 2.10(b);
(ii) with respect to any Syndicated Letter of Credit outstanding at the time such Bank becomes a Defaulting Bank, with the consent of the beneficiary thereunder to the extent required by the terms thereof or under applicable law (including, if applicable, the Uniform Customs and Practices for Documentary Credits governing such Syndicated Letter of Credit), (x) all or any part of the Syndicated LC Exposure of such Defaulting Bank (other than any such Syndicated LC Exposure for which JPMorgan is then acting as a Confirming Bank for such Defaulting Bank pursuant to Section 2.16(b)) shall be reallocated among the Non-Defaulting Banks in accordance with their respective Applicable Percentages but only to the extent (I) the sum of all Non-Defaulting Banks' Credit Exposures plus such Defaulting Bank's LC Exposure does not exceed the total of all Non-Defaulting Banks' Commitments and (II) such reallocation does not, as to any non-interest bearing account Defaulting Bank, cause such non-Defaulting Bank's Credit Exposure to exceed its Commitment and (y) each such Syndicated Letter of Credit (other than any Syndicated Letter of Credit in respect of which JPMorgan is then acting as a Confirming Bank for such Bank pursuant to Section 2.16(b)) shall be amended by the Administrative Agent to specify the Banks that are parties to such Syndicated Letter of Credit (excluding, for avoidance of doubt, such Bank), after giving effect to such event, and such Banks' respective Applicable Percentages as of the effective date of such amendment;
(iii) if the Syndicated LC Exposure of the Non-Defaulting Banks is reallocated with respect to any Syndicated Letter of Credit pursuant to clause (ii) above, then the letter of credit fees payable to the Banks with respect to such Syndicated Letter of Credit pursuant to Section 2.10(b) shall be adjusted in accordance with such Non-Defaulting Banks' Applicable Percentages; and
(iv) the Syndicated LC Exposures of the Banks in respect of any newly issued Syndicated Letter of Credit shall be allocated among Non-Defaulting Banks in a manner consistent with clause (ii) above (and such Defaulting Bank shall have no obligation under each such Syndicated Letter of Credit to the extent such Syndicated LC Exposures in respect thereof are so reallocated);
(e) until such time as the readjustments with respect to such Defaulting Bank are effected pursuant to subsection (f) of this Section, the Company may, upon notice to such Defaulting Bank and the Administrative Agent, require such Bank, at the expense of such Defaulting Bank, to assign, without recourse (in accordance with and subject to the restrictions contained in Section 2.18(d10.06)) , all its interests, rights and obligations under this Agreement and the termination Letters of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the AgentCredit issued, to the fullest extent permitted by lawor participated in, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to any Person that shall assume such obligations (which assignee may be another Bank, if it accepts such assignment) with (and subject to) the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination consent of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
Administrative Agent (iiwhich consent shall not unreasonably be withheld); provided that (i) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid have received payment of an amount equal to the outstanding amount of its LC Disbursements (including participations therein), principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding LC Disbursements, Loans and accrued interest and fees) or the applicable Account Parties (in the case of all other amounts) (provided that the Account Parties may deduct, or cause such assignee to deduct, from amounts payable by them or it, as applicable, to such Defaulting Bank hereunder all fees, costs and expenses reasonably incurred by the Account Parties in the same amounts effecting such assignment) and in the same manner as if (ii) concurrently with such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice assignment, to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account extent any LC Exposure of such Defaulting Bank under theretofore shall have been reallocated pursuant to this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any BorrowerSection, the Agent or any Bank may have against Credit Exposures of the Banks (including, after giving effect to such assignment, such assignee) shall be readjusted (and payments made by the relevant parties) in a manner consistent with subsection (f) of this Section, such that, after giving effect thereto, the Banks (including such assignee, but not such Defaulting Bank; and
(d) In shall hold the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts Credit Exposures then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective CommitmentsApplicable Percentages; and
(f) in the event that the Administrative Agent, whereupon the Account Parties and (to the extent there shall be Fronted Letters of Credit then outstanding) each Fronting Issuing Bank each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank will to be a Defaulting Bank, then such Bank shall cease to be a Defaulting Bank and will the Credit Exposures of the Banks shall be readjusted as follows:
(i) with respect to any Fronted LC Exposure then outstanding, such Fronting LC Exposure shall be readjusted to reflect the inclusion of such Bank's Commitment and such Bank shall purchase at par such of the unreimbursed LC Disbursements then outstanding (if any) of the other Banks in respect of such Fronted LC Exposure as the Administrative Agent shall determine may be necessary in order for such Bank to hold such LC Disbursements in accordance with its Applicable Percentage;
(ii) with respect to any Syndicated LC Exposure then outstanding, (x) with the consent of the beneficiary under each outstanding Syndicated Letter of Credit to the extent required by the terms thereof or under applicable law (including, if applicable, the Uniform Customs and Practices for Documentary Credits governing such Syndicated Letter of Credit) and to the extent such Syndicated Letter of Credit was theretofore amended or issued pursuant to subsection (d)(ii) or (d)(iv), as applicable, of this Section to reflect the exclusion of such Bank's Commitment, (I) each such Syndicated Letter of Credit shall be amended by the Administrative Agent to specify the Banks (including such Bank) that are then parties to such Syndicated Letter of Credit and such Banks' respective Applicable Percentages, in each case reflecting the inclusion of such Bank's Commitment, as of the effective date of such amendment and (II) if such Syndicated Letter of Credit was not theretofore amended pursuant to subsection (d)(ii) of this Section to reflect the exclusion of such Bank's Commitment thereunder, but instead the face amount of such Syndicated Letter of Credit was increased or a new Letter of Credit was issued hereunder in favor of the beneficiary of such Syndicated Letter of Credit in order to provide such beneficiary with an aggregate undrawn face amount of Letters of Credit from the Non-Defaulting Bank Banks (and each including, if applicable, the applicable Fronting Issuing Banks) in the amount required by such beneficiary, the amount of such Syndicated Letter of Credit or new Letter of Credit shall be amended by the Administrative Agent to decrease the amount thereof, or the Company shall arrange for such new Letter of Credit to be surrendered by such beneficiary to the Administrative Agent or the applicable Fronting Issuing Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis , in order to reflect the foregoing); inclusion of such Bank's Commitment pursuant to the amendment to such Syndicated Letter of Credit under sub-clause (I) above (provided that no adjustments will that, notwithstanding anything herein to the contrary, the Company shall not be made retroactively required to pay any letter of credit fees to such Bank pursuant to Section 2.10(b) until such amendments with respect to fees accrued or payments made by or on behalf such Letters of Credit shall have become effective); (y) (subject to clause (x) being satisfied with respect to a Syndicated Letter of Credit) the Syndicated LC Exposure of the Borrowers while Banks with respect to such Syndicated Letter of Credit shall be readjusted to reflect the inclusion of such Bank's Commitment; and (z) (subject to clause (x) being satisfied with respect to a Syndicated Letter of Credit) such Bank was a Defaulting Bank; and provided, further, that except shall purchase at par such of the unreimbursed LC Disbursements then outstanding (if any) of the other Banks with respect to such Syndicated Letter of Credit as the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Administrative Agent shall determine may be necessary in order for such Bank to Non-Defaulting hold such LC Disbursements in accordance with its Applicable Percentage; and
(iii) with respect to any Loans then outstanding, such Bank will constitute a waiver or release shall purchase at par such of any claim the Loans of any party hereunder arising from the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank’s having been a Defaulting BankBank to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Lincoln National Corp), Credit Agreement (Lincoln National Corp)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees)4.1;
(ib) Any amount paid by the Borrowers Credit Exposure of such Defaulting Bank shall not be included in determining whether the Required Banks have taken or otherwise received by may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 12.4); provided, that this clause (b) shall not apply to the Agent for the account vote of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account in the case of feesan amendment, indemnity payments waiver or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by modification requiring the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts consent of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting each Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bankaffected thereby;
(c) The Borrowers may terminate if any Swingline Advances are outstanding at the unused amount of the Commitment of time such Bank becomes a Defaulting Bank upon not less than three then:
(3i) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account or any part of such Defaulting Bank under this Agreement (whether on account Bank’s participation in Swingline Advances shall be reallocated among the non-Defaulting Banks in accordance with their respective Percentages but only to the extent the sum of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against all non-Defaulting Banks’ Committed Outstandings plus such Defaulting Bank’s Percentage of Swingline Advances does not exceed the total of all non-Defaulting Banks’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Agent prepay such Swingline Advances to the extent not so reallocated; and
(d) so long as such Bank is a Defaulting Bank, the Swingline Bank shall not be required to fund any Swingline Advance unless 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 Swingline Advance shall be allocated among non-Defaulting Banks in a manner consistent with Section 6.7(c)(i) (and such Defaulting Bank shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, the Swingline Bank shall not be required to fund any Swingline Advance unless the Swingline Bank shall have entered into arrangements with the Borrower or such Bank, satisfactory to the Swingline Bank to defease any risk to it in respect of such Bank hereunder. In the event that the Borrowers Agent, the Borrower and the Agent agree in writing in their discretion Swingline Bank each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify the parties hereto, whereupon as participations of the effective Banks in Swingline Advances shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding the Advances of the other Banks and/or make such (other adjustments than Bid Loans and Swingline Advances) as the Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Advances in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bankits Percentage.
Appears in 2 contracts
Sources: Five Year Credit Agreement (3m Co), Credit Agreement (3m Co)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.and
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Caterpillar Financial Services Corp), Credit Agreement (Caterpillar Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, Bank then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Fees shall cease to accrue on the unfunded Commitment of such Defaulting Bank will not pursuant to Section 5.04(a). Each Defaulting Bank shall be entitled to receive Letter of Credit Fees under Section 5.04(b) for any fees accruing period during which such period Bank is a Defaulting Bank only to the extent allocable to its L/C Exposure of the stated amount of Letters of Credit for which it has provided cash collateral to the Administrative Agent.
(b) The Commitments and Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 2.04 11.01) which requires Majority Banks consent.
(c) All or any part of any Swingline Exposure or L/C Exposure shall be reallocated among the non-Defaulting Banks in accordance with their respective Applicable Percentages but only to the extent such reallocation does not cause any non-Defaulting Bank to exceed its Commitment; provided that if such reallocation cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, within two Business Days following notice by the rights Administrative Agent (x) first, prepay such Swingline Exposure, and (y) second, cash collateralize for the benefit of each Issuing Bank the Borrower’s obligations corresponding to such Defaulting Bank’s L/C Exposure (after giving effect to any partial reallocation described in this clause (c)) in accordance with the procedures set forth in Section 9.02 for so long as such L/C Exposure is outstanding. Notwithstanding the foregoing, reallocation of Swingline Exposure or L/C Exposure in accordance with the terms of this Agreement shall not constitute a waiver or release of claims against any such Defaulting Bank.
(d) If the Borrower cash collateralizes any portion of such Defaulting Bank’s L/C Exposure pursuant to clause (c) above, the Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 5.04(b) with respect to such Defaulting Bank’s L/C Exposure during the period such Defaulting Bank’s L/C Exposure is so cash collateralized.
(e) If the L/C Exposure of the Banks other than non-Defaulting Banks are reallocated pursuant to clause (c) above, then the fees payable to the Banks pursuant to Sections 5.04(a) and (b) shall be adjusted in respect accordance with such non-Defaulting Banks’ Applicable Percentages.
(f) If all or any portion of such fees);
Defaulting Bank’s L/C Exposure is neither cash collateralized nor reallocated pursuant to clause (ic) Any amount paid by above, then, without prejudice to any rights or remedies of the Borrowers Issuing Banks or any other Bank hereunder, all Facility Fees that otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest would have been payable to such Defaulting Bank (whether on account solely with respect to the portion of fees, indemnity payments or other amounts not constituting principal or interestsuch Defaulting Bank’s Commitment that was utilized by such L/C Exposure) will not be paid or distributed and Letter of Credit Fees payable under Section 5.04(b) with respect to such Defaulting Bank’s L/C Exposure shall be payable, but will instead be retained by the Agent in on a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agentpro rata basis, to the fullest extent permitted Issuing Banks until each such L/C Exposure is cash collateralized and/or reallocated.
(g) So long as such Bank is a Defaulting Bank, no Swingline Banks shall be required to fund any Swingline Loan and the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless, in each case, the applicable Swingline Bank or Issuing Bank is satisfied that the related exposure will be 100% covered by lawthe non-Defaulting Banks, cash collateral provided pursuant to clause fifth of Section 5.19(h) below and/or cash collateral provided by the making Borrower in accordance with Section 5.19(c).
(h) Any payment of payments principal, interest, fees or other amounts received by the Administrative Agent hereunder for the account of such Defaulting Bank (whether voluntary or mandatory, at maturity, pursuant to Article IX or otherwise) or received by the Administrative Agent from a Defaulting Bank pursuant to Section 11.05 shall be applied at such time to time in or times as may be determined by the following order of priorityAdministrative Agent as follows: first first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to any Swingline Bank or Issuing Bank hereunder; third, to cash collateralize the Issuing Banks’ exposure with respect to such Defaulting Bank; fourth as the Borrower may request (so long as no Event of Default or Unmatured Event of Default exists), to the funding of any Advance in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Bank’s potential future funding obligations with respect to Advances under this Agreement and (y) cash collateralize the Issuing Banks’ future exposure with respect to such Defaulting Bank with respect to future Letters of Credit issued under this Agreement; sixth, second to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Defaulting Banks, ratably among them in accordance with the amounts Swingline Banks or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank, the Swingline Banks or the Issuing Banks against such Defaulting Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement; seventh, third so long as no Event of Default or Unmatured Event of Default exists, to the payment of fees then due and payable any amounts owing to the Non-Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Banks hereunder, ratably among them in accordance with the amounts Bank as a result of such fees then due and payable to them, fourth to the ratable payment Defaulting Bank’s breach of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all its obligations of the Borrowers hereunder, to pay amounts owing under this Agreement Agreement; and eighth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise direct.
jurisdiction; provided that if (iix) Any such payment is a payment of the principal amount paid of any Advances or Reimbursement Obligations in respect of which such Defaulting Bank has not fully funded its proportionate share, and (y) such Advances were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 6.02 were satisfied or waived, such payment shall be applied solely to pay the Advances of, and Reimbursement Obligations owed to, all non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Advances of, or Reimbursement Obligations owed to, such Defaulting Bank until such time as all Advances and funded and unfunded participations in L/C Obligations and Swingline Loans are held by the Borrowers for Banks pro rata in accordance with the account of Commitments without giving effect to Section 5.19(c). Any payments, prepayments or other amounts paid or payable to a Defaulting Bank representing principal that are applied (or interest payable held) to such pay amounts owed by a Defaulting Bank shall be deemed paid to and redirected by such Defaulting Bank, and each Bank in irrevocably consents hereto.
(i) In the same amounts event that the Administrative Agent, the Borrower, each Swingline Bank and in the same manner as if such each Issuing Bank agree that a Defaulting Bank were has adequately remedied all matters that caused such Bank to be a Non-Defaulting Bank;, then the Aggregate Revolving Credit Exposure shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the loans of the other Banks (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such loans in accordance with its Applicable Percentage.
(cj) The Borrowers Borrower may terminate the unused amount of the Commitment of any Bank that is a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Administrative Agent (which will shall promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b5.19(c) will apply to all amounts thereafter paid by the Borrowers Borrower for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), ; provided that (i) no Event of Default shall have occurred and be continuing, and (ii) such termination will shall not be deemed to be a waiver or release of any claim any the Borrower, the Agent Administrative Agent, any Issuing Bank, any Swingline Bank or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Baxter International Inc), Credit Agreement (Baxalta Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such facility fees shall cease to accrue on the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees2.10(a);
(ib) Any amount paid by the Borrowers Commitment and Credit Exposure of such Defaulting Bank shall not be included in determining whether the Required Banks have taken or otherwise received by may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.05); provided that this clause (b) shall not apply to the Agent for the account vote of a Defaulting Bank under this Agreement in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank affected thereby;
(c) with respect to any Fronted LC Exposure (if any):
(i) all or any part of the Fronted LC Exposure of such Defaulting Bank (other than such Fronted LC Exposure that is cash collateralized pursuant to Section 2.16(b)) shall be reallocated among the Non-Defaulting Banks in accordance with their respective Applicable Percentages but only to the extent the sum of all Non-Defaulting Banks' Credit Exposures plus such Defaulting Bank's LC Exposure does not exceed the total of all Non-Defaulting Banks' Commitments (and, if such reallocation can only partially be effected, such reallocation shall be made ratably among the then outstanding Fronted Letters of Credit, unless otherwise agreed by the Fronting Issuing Banks and the Administrative Agent);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the relevant Account Party under each outstanding Fronted Letter of Credit shall within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the applicable Fronting Issuing Bank only such Account Party's obligations in respect thereof corresponding to such Defaulting Bank's Fronted LC Exposure thereunder (after giving effect to any amounts representing principal partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.03(e) for so long as such Fronted LC Exposure is outstanding;
(iii) if the Account Parties cash collateralizes any portion of such Defaulting Bank's Fronted LC Exposure pursuant to clause (ii) above, the Company shall not be required to pay any letter of credit fees to such Defaulting Bank pursuant to Section 2.10(b) with respect to such Defaulting Bank's Fronted LC Exposure during the period and to the extent that such Defaulting Bank's Fronted LC Exposure is cash collateralized;
(iv) if the Fronted LC Exposure of the Non-Defaulting Banks is reallocated pursuant to clause (i) above, then the letter of credit fees payable to the Banks pursuant to Section 2.10(b) shall be adjusted in accordance with such Non-Defaulting Banks' Applicable Percentages;
(v) if all or interest any portion of such Defaulting Bank's Fronted LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any applicable Fronting Issuing Bank or any other Bank hereunder, all facility fees that otherwise would have been payable to such Defaulting Bank (whether on account solely with respect to the portion of fees, indemnity payments or other amounts not constituting principal or interestsuch Defaulting Bank's Commitment that was utilized by such Fronted LC Exposure) will not be paid or distributed and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Bank's Fronted LC Exposure shall be payable to the applicable Fronting Issuing Banks until and to the extent that such Fronted LC Exposure is reallocated and/or cash collateralized;
(vi) so long as such Bank is a Defaulting Bank, but no Fronting Issuing Bank shall be required to issue, amend or increase any Fronted Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Bank's then outstanding Fronted LC Exposure will instead be retained 100% covered by the Agent Commitments of the Non-Defaulting Banks and/or cash collateral will be provided by the Account Parties in accordance with Section 2.17(c), and participating interests in any newly issued or increased Fronted Letter of Credit shall be allocated among Non-Defaulting Banks in a segregated nonmanner consistent with Section 2.17(c)(i) (and such Defaulting Bank shall not participate therein); and
(vii) if (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any Fronting Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such Fronting Issuing Bank shall not be required to issue, amend or increase any Fronted Letter of Credit, unless such Fronting Issuing Bank shall have entered into arrangements with the Account Parties or such Bank, satisfactory to such Fronting Issuing Bank, to defease any risk to it in respect of such Bank hereunder;
(d) with respect to any Syndicated LC Exposure (if any):
(i) letter of credit fees shall cease to accrue on such Defaulting Bank's Syndicated LC Exposure pursuant to Section 2.10(b);
(ii) with respect to any Syndicated Letter of Credit outstanding at the time such Bank becomes a Defaulting Bank, with the consent of the beneficiary thereunder to the extent required by the terms thereof or under applicable law (including, if applicable, the Uniform Customs and Practices for Documentary Credits governing such Syndicated Letter of Credit), (x) all or any part of the Syndicated LC Exposure of such Defaulting Bank (other than any such Syndicated LC Exposure for which JPMCB is then acting as a Confirming Bank for such Defaulting Bank pursuant to Section 2.16(b)) shall be reallocated among the Non-interest bearing account Defaulting Banks in accordance with their respective Applicable Percentages but only to the extent the sum of all Non-Defaulting Banks' Credit Exposures plus such Defaulting Bank's LC Exposure does not exceed the total of all Non-Defaulting Banks' Commitments and (y) each such Syndicated Letter of Credit (other than any Syndicated Letter of Credit in respect of which JPMCB is then acting as a Confirming Bank for such Bank pursuant to Section 2.16(b)) shall be amended by the Administrative Agent to specify the Banks that are parties to such Syndicated Letter of Credit (excluding, for avoidance of doubt, such Bank), after giving effect to such event, and such Banks' respective Applicable Percentages as of the effective date of such amendment;
(iii) if the Syndicated LC Exposure of the Non-Defaulting Banks is reallocated with respect to any Syndicated Letter of Credit pursuant to clause (ii) above, then the letter of credit fees payable to the Banks with respect to such Syndicated Letter of Credit pursuant to Section 2.10(b) shall be adjusted in accordance with such Non-Defaulting Banks' Applicable Percentages; and
(iv) the Syndicated LC Exposures of the Banks in respect of any newly issued Syndicated Letter of Credit shall be allocated among Non-Defaulting Banks in a manner consistent with clause (ii) above (and such Defaulting Bank shall have no obligation under each such Syndicated Letter of Credit to the extent such Syndicated LC Exposures in respect thereof are so reallocated);
(e) until such time as the readjustments with respect to such Defaulting Bank are effected pursuant to subsection (f) of this Section, the Company may, upon notice to such Defaulting Bank and the Administrative Agent, require such Bank, at the expense of such Defaulting Bank, to assign, without recourse (in accordance with and subject to the restrictions contained in Section 2.18(d10.06)) , all its interests, rights and obligations under this Agreement and the termination Letters of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the AgentCredit issued, to the fullest extent permitted by lawor participated in, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to any Person that shall assume such obligations (which assignee may be another Bank, if it accepts such assignment) with (and subject to) the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination consent of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
Administrative Agent (iiwhich consent shall not unreasonably be withheld); provided that (i) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid have received payment of an amount equal to the outstanding amount of its LC Disbursements (including participations therein), principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding LC Disbursements, Loans and accrued interest and fees) or the applicable Account Parties (in the case of all other amounts) (provided that the Account Parties may deduct, or cause such assignee to deduct, from amounts payable by them or it, as applicable, to such Defaulting Bank hereunder all fees, costs and expenses reasonably incurred by the Account Parties in the same amounts effecting such assignment) and in the same manner as if (ii) concurrently with such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice assignment, to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account extent any LC Exposure of such Defaulting Bank under theretofore shall have been reallocated pursuant to this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any BorrowerSection, the Agent or any Bank may have against Credit Exposures of the Banks (including, after giving effect to such assignment, such assignee) shall be readjusted (and payments made by the relevant parties) in a manner consistent with subsection (f) of this Section, such that, after giving effect thereto, the Banks (including such assignee, but not such Defaulting Bank; and
(d) In shall hold the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts Credit Exposures then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective CommitmentsApplicable Percentages; and
(f) in the event that the Administrative Agent, whereupon the Account Parties and (to the extent there shall be Fronted Letters of Credit then outstanding) each Fronting Issuing Bank each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank will to be a Defaulting Bank, then such Bank shall cease to be a Defaulting Bank and will the Credit Exposures of the Banks shall be readjusted as follows:
(i) with respect to any Fronted LC Exposure then outstanding, such Fronting LC Exposure shall be readjusted to reflect the inclusion of such Bank's Commitment and such Bank shall purchase at par such of the unreimbursed LC Disbursements then outstanding (if any) of the other Banks in respect of such Fronted LC Exposure as the Administrative Agent shall determine may be necessary in order for such Bank to hold such LC Disbursements in accordance with its Applicable Percentage;
(ii) with respect to any Syndicated LC Exposure then outstanding, (x) with the consent of the beneficiary under each outstanding Syndicated Letter of Credit to the extent required by the terms thereof or under applicable law (including, if applicable, the Uniform Customs and Practices for Documentary Credits governing such Syndicated Letter of Credit) and to the extent such Syndicated Letter of Credit was theretofore amended or issued pursuant to subsection (d)(ii) or (d)(iv), as applicable, of this Section to reflect the exclusion of such Bank’s Commitment, (I) each such Syndicated Letter of Credit shall be amended by the Administrative Agent to specify the Banks (including such Bank) that are then parties to such Syndicated Letter of Credit and such Banks' respective Applicable Percentages, in each case reflecting the inclusion of such Bank’s Commitment, as of the effective date of such amendment and (II) if such Syndicated Letter of Credit was not theretofore amended pursuant to subsection (d)(ii) of this Section to reflect the exclusion of such Bank’s Commitment thereunder, but instead the face amount of such Syndicated Letter of Credit was increased or a new Letter of Credit was issued hereunder in favor of the beneficiary of such Syndicated Letter of Credit in order to provide such beneficiary with an aggregate undrawn face amount of Letters of Credit from the Non-Defaulting Bank Banks (and each including, if applicable, the applicable Fronting Issuing Banks) in the amount required by such beneficiary, the amount of such Syndicated Letter of Credit or new Letter of Credit shall be amended by the Administrative Agent to decrease the amount thereof, or the Company shall arrange for such new Letter of Credit to be surrendered by such beneficiary to the Administrative Agent or the applicable Fronting Issuing Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis , in order to reflect the foregoing); inclusion of such Bank’s Commitment pursuant to the amendment to such Syndicated Letter of Credit under sub-clause (I) above (provided that no adjustments will that, notwithstanding anything herein to the contrary, the Company shall not be made retroactively required to pay any letter of credit fees to such Bank pursuant to Section 2.10(b) until such amendments with respect to fees accrued or payments made by or on behalf such Letters of Credit shall have become effective); (y) (subject to clause (x) being satisfied with respect to a Syndicated Letter of Credit) the Syndicated LC Exposure of the Borrowers while Banks with respect to such Syndicated Letter of Credit shall be readjusted to reflect the inclusion of such Bank's Commitment; and (z) (subject to clause (x) being satisfied with respect to a Syndicated Letter of Credit) such Bank was a Defaulting Bank; and provided, further, that except shall purchase at par such of the unreimbursed LC Disbursements then outstanding (if any) of the other Banks with respect to such Syndicated Letter of Credit as the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Administrative Agent shall determine may be necessary in order for such Bank to Non-Defaulting hold such LC Disbursements in accordance with its Applicable Percentage; and
(iii) with respect to any Loans then outstanding, such Bank will constitute a waiver or release shall purchase at par such of any claim the Loans of any party hereunder arising from the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank’s having been a Defaulting BankBank to hold such Loans in accordance with its Applicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Lincoln National Corp), 364 Day Credit Agreement (Lincoln National Corp)
Defaulting Banks. Notwithstanding any provision of in this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Undrawn Fees shall cease to accrue on the unfunded portion of the Commitments of such Defaulting Bank;
(b) such Defaulting Bank will not be entitled shall have no voting or consent rights with respect to matters under the Credit Documents solely except to the extent any fees accruing during such period proposed amendment or waiver (i) increases or decreases the Commitment of any Bank (except for a rateable decrease in the Commitments of all Banks and except pursuant to Section 2.04 13.5(c)), (without prejudice ii) forgives or reduces the principal of or rate of interest on any Accommodation or any fees hereunder (other than Undrawn Fees), (iii) postpones the date fixed for any payment of any Accommodations Outstanding or interest on any Accommodation or any fees hereunder (other than Undrawn Fees) or for any termination of any Commitment, (iv) changes the percentage of the Commitments or of the aggregate unpaid amount of the Accommodations Outstanding, or the number of Banks which shall be required for the Banks or any of them to take any action under Section 13.4 or any other provision of this Agreement, (v) amends the definition of “Required Banks” or “Required Class Banks”, (vi) amends, modifies or waives any provision of Section 13.4, (vii) extends a Commitment Termination Date, (viii) amends or waives any provisions in Section 5.2 or 5.8, or (ix) consents to any release or termination of the HMC Support Agreement. Accordingly, subject to the rights of previous sentence, the Banks other than Defaulting Banks in respect Commitments and Accommodations Outstanding of such feesDefaulting Bank shall not be included in determining whether all Banks, the Required Banks or the Required Class Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.4);
(ic) Any amount paid to the extent permitted by law, the Borrowers Administrative Agent shall be entitled to withhold and deposit in one or otherwise more non-interest bearing accounts in the name of the Administrative Agent any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesvoluntary or mandatory, indemnity at maturity, pursuant to Section 11 or otherwise), which payments shall be applied at such time or other amounts not constituting principal or interest) will not times as may be paid or distributed to such Defaulting Bank, but will instead be retained determined by the Administrative Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agentas follows: first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent in such capacity hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Accommodation in respect of which that Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and third, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released in order to satisfy obligations of such Defaulting Bank to fund future Accommodations under this Agreement; provided that if such payment is a payment of the principal amount of any Accommodations in respect of which such Defaulting Bank has not fully funded its appropriate share, second such payment shall be applied solely to pay the applicable Accommodations Outstanding of the same Class owed to all non-Defaulting Banks of such Class on a rateable basis prior to being applied to the payment of post-default interest and then current interest due and any Accommodations Outstanding to any Defaulting Bank until such time as all Accommodations of such Class are held by the Banks of such Class rateably in accordance with such Banks’ Commitments of such Class. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents thereto;
(d) for greater certainty, neither the Non-Administrative Agent nor any of its Affiliates nor any of their respective directors, officers, employees, managers, administrators, trustees, agents, advisors and representatives shall be liable to any Bank (including a Defaulting Banks, ratably among them Bank) for any action taken or omitted to be taken by it in connection with amounts received and deposited by the Administrative Agent in any account pursuant to this Section 2.12 and applied in accordance with the amounts provisions of such interest then due this Agreement, save and payable to them, third to except for the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination gross negligence or wilful misconduct of the Commitments Administrative Agent as determined by a final and payment in full non-appealable judgment of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bankjurisdiction;
(ce) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers Administrative Agent and the Agent agree Borrower each agrees in writing in their discretion that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Accommodations Outstanding of each Class of the other Banks and/or make such other adjustments of the applicable Class as the Administrative Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations hold such Accommodations Outstanding of the Banks to be on a pro rata basis all Classes in accordance with their respective Commitments, its rateable share whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no . No adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Borrower while such the Bank was a Defaulting Bank; and provided, further, that except . Except to the extent otherwise expressly agreed to by the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such that Bank’s having been a Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (American Honda Finance Corp), Credit Agreement (American Honda Finance Corp)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement anything to the contrarycontrary contained herein, if the Maximum Credit Amount of a Defaulting Bank shall not be included in determining whether all Banks, the Super Majority Banks or the Required Banks have taken or may take any action hereunder (including approval of any redetermination of the Borrowing Base pursuant to Article IV and any consent to any amendment or waiver pursuant to Section 14.2); provided that, any waiver, amendment or modification requiring the consent of all Banks or each affected Bank becomes a which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank; and provided further that in no event shall (i) the Commitment, Elected Commitment or Maximum Credit Amount of any Defaulting Bank be increased or amounts owed to such Defaulting Bank reduced without the consent of such Defaulting Bank, then or (ii) the following provisions shall apply Termination Date or any date fixed for so long as any payment of principal of or interest on the Loan or any fees hereunder be postponed without the consent of such Bank is a Defaulting Bank:.
(b) If any Bank shall fail to make any payment referenced in clause (a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than definition of “Defaulting Banks Bank”, then the Administrative Agent may, in respect of such fees);
its discretion and notwithstanding any contrary provision hereof, (i) Any amount paid by the Borrowers or otherwise apply any amounts thereafter received by the Administrative Agent for the account of a Defaulting such Bank under this Agreement other than and for the benefit of the Administrative Agent or any Letter of Credit Issuer to satisfy such Bank’s obligations hereunder until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until as cash collateral for, and application to, any future funding obligations of such Bank hereunder; in the case of each of (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion; provided that, subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties14.17, no change reallocation hereunder from Defaulting Bank to Non-Defaulting Bank will shall constitute a waiver or release of any claim of any party hereunder arising from against such Bank as a result of such Bank’s having been increased exposure following such reallocation.
(c) Borrower shall not be obligated to pay the Administrative Agent any Defaulting Bank’s ratable share of the fees described in Sections 2.11, 2.12 or 2.13 (notwithstanding anything to the contrary in such sections) for the period commencing on the day such Defaulting Bank becomes a Defaulting Bank and continuing for so long as such Bank continues to be a Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Laredo Petroleum, Inc.), Credit Agreement (Laredo Petroleum, Inc.)
Defaulting Banks. Notwithstanding (a) In the event that, at any provision one time, (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Amount to any Agent or any of this Agreement the other Banks and (iii) any Account Party shall make any payment hereunder or under any other Loan Document to the contrary, if any Bank becomes a Administrative Agent for the account of such Defaulting Bank, then the following provisions shall Administrative Agent may, on its behalf or on behalf of such other Banks and to the fullest extent permitted by applicable law, apply at such time the amount so paid by such Account Party to or for so long as the account of such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights payment of each such Defaulted Amount to the Banks extent required to pay such Defaulted Amount. In the event that the Administrative Agent shall so apply any such amount to the payment of any such Defaulted Amount on any date, the amount so applied by the Administrative Agent shall constitute for all purposes of this Agreement and the other than Defaulting Banks in respect Loan Documents payment, to such extent, of such fees);Defaulted Amount on such date. Any such amount so applied by the Administrative Agent shall be retained by the Administrative Agent or distributed by the Administrative Agent to such other Banks, ratably in accordance with the respective portions of such Defaulted Amounts payable at such time to the Administrative Agent and such other Banks and, if the amount of such payment made by such Account Party shall at such time be insufficient to pay all Defaulted Amounts owing at such time to the Administrative Agent, such other Agents and such other Banks, in the following order of priority:
(i) first, to the Agents for any Defaulted Amounts then owing to the Agents;
(ii) second, to the Issuing Banks for any amount then due and payable to them, in their capacity as such, by such Defaulting Bank, ratably in accordance with such amounts then due and payable to the Issuing Banks; and
(iii) third, to any other Banks for any Defaulted Amounts then owing to such other Banks, ratably in accordance with such respective Defaulted Amounts then owing to such other Banks. Any portion of such amount paid by the Borrowers or otherwise received by the Agent such Account Party for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank remaining, after giving effect to the amount applied by the Administrative Agent pursuant to this Section 2.11(a), shall be applied by the Administrative Agent as specified in Section 2.11(b).
(whether on b) In the event that, at any one time, (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall not owe a Defaulted Amount and (iii) any Account Party, any Agent or other Bank shall be required to pay or distribute any amount hereunder or under any other Loan Document to or for the account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead then such Account Party or such Agent or such other Bank shall pay such amount to the Administrative Agent to be retained held by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by applicable law, in escrow and the Administrative Agent shall, to the making fullest extent permitted by applicable law, hold in escrow such amount otherwise held by it. Any funds held by the Administrative Agent in escrow under this Section 2.11(b) shall be deposited by the Administrative Agent in an account with Wachovia in the name and under the control of payments the Administrative Agent, but subject to the provisions of this Section 2.11(b). The terms applicable to such account, including the rate of interest payable with respect to the credit balance of such account from time to time, shall be Wachovia’s standard terms applicable to escrow accounts maintained with it. Any interest credited to such account from time to time shall be held by the Administrative Agent in escrow under, and applied by the Administrative Agent from time to time in accordance with the provisions of, this Section 2.11(b). The Administrative Agent shall, to the fullest extent permitted by applicable law, apply all funds so held in escrow from time to time to the extent necessary to make any Advances required to be made by such Defaulting Bank and to pay any amount payable by such Defaulting Bank hereunder and under the other Loan Documents to the Administrative Agent or any other Bank, as and when such Advances or amounts are required to be made or paid and, if the amount so held in escrow shall at any time be insufficient to make and pay all such Advances and amounts required to be made or paid at such time, in the following order of priority: first :
(i) first, to the payment of Agents for any amounts owing then due and payable by such Defaulting Bank to the Agent under this AgreementAgents hereunder;
(ii) second, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest Issuing Banks for any amount then due and payable to them, third to the payment of fees then due and payable to the Non-in their capacity as such, by such Defaulting Banks hereunderBank, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-such Issuing Banks; and
(iii) third, to any other Banks for any amount then due and payable by such Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers Bank to such other Banks hereunder, ratably in accordance with such respective amounts then due and payable to pay amounts such other Banks. In the event that any Bank that is a Defaulting Bank shall, at any time, cease to be a Defaulting Bank, any funds held by the Administrative Agent in escrow at such time with respect to such Bank shall be distributed by the Administrative Agent to such Bank and applied by such Bank to the obligations owing to such Bank at such time under this Agreement to and the other Loan Documents ratably in accordance with the respective amounts of such Defaulting Bank or as a court of competent jurisdiction may otherwise directobligations outstanding at such time.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of rights and remedies against a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or Section 2.11 are in addition to other amounts), provided rights and remedies that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting BankDefaulted Amount.
Appears in 2 contracts
Sources: Reimbursement Agreement (Ace LTD), Reimbursement Agreement (Ace LTD)
Defaulting Banks. Notwithstanding anything contained in Sections 2.8, 2.9 or any other provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank then: all Letters of Credit Outstanding and Swing Line Loan outstanding at such time, and all Letters of Credit issued or Swing Line Loans made while there exists a Defaulting Bank shall be reallocated among the non-Defaulting Banks in accordance with their respective Ratable Shares (such Ratable Shares shall be determined without reference to each Defaulting Lender’s Ratable Share) but only to the extent (a) the sum of all non-Defaulting Banks’ Ratable Share of all Loans outstanding, Swing Loans outstanding and Letters of Credit outstanding does not exceed the total of all non-Defaulting Banks’ Commitments and (b) the aggregate obligation of each non-Defaulting Bank to acquire, refinance or fund any participations in Letters of Credit and Swing Line Loans shall not exceed the positive difference (i) the Commitment of such Bank minus (ii) such Bank’s Ratable Share of the Dollar Equivalent of all outstanding Revolving Credit Loans Swing Line Loans and Letters of Credit outstanding. If the reallocation described in the preceding sentence cannot, or can only partially, be effected, the Borrowers shall within one Business Day following notice by the Administrative Agent, (1) first, prepay outstanding Swing Loans and (2) second, cash collateralize such Defaulting Bank’s portion of Letters of Credit outstanding (after giving effect to any partial reallocation pursuant the immediately preceding sentence). To the extent such Letters of Credit Outstanding and Swing Line Loans are reallocated pursuant to this Section 2.14, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled fees payable to any fees accruing during such period the Banks pursuant to Section 2.04 2.8.2 (but not Section 2.3) shall be adjusted in accordance with such non-Defaulting Banks’ Ratable Shares. To the extent such Letters of Credit Outstanding are not reallocated pursuant to this Section 2.14, or the Defaulting Bank’s Ratable Share of Letters of Credit Outstanding have not been cash collateralized, then, without prejudice to the any rights or remedies of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers Issuing Bank or any Bank hereunder, all Commitment Fees that otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest would have been payable to such Defaulting Bank (whether on account solely with respect to the portion of fees, indemnity payments or other amounts not constituting principal or interestsuch Defaulting Bank’s Commitment that was utilized by such Letters of Credit Outstanding) will not be paid or distributed and Letter of Credit Fees with respect to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination ’s Ratable Share of the Commitments and payment in full Letters of all obligations of the Borrowers hereunder and will Credit Outstanding shall be applied by the Agent, payable to the fullest extent permitted by law, to the making of payments from time to time Issuing Bank. Nothing contained in the following order of priority: first to the payment this Section or elsewhere in this Agreement and no reallocation of any amounts owing Defaulting Bank’s Ratable Share of any obligation hereunder shall relieve such Defaulting Bank of its obligation to fund any portion of any amount owed by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) . In the event that the Borrowers Administrative Agent, the Borrower, and the Agent Issuing Banks each agree in writing in their discretion that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify Letters of Credit Outstanding and the parties hereto, whereupon as Swing Loans outstanding shall be readjusted to reflect the inclusion of the effective date specified in such notice Bank’s Commitment and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b))on such date, such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Loans of the other Banks and/or make such other adjustments as the Administrative Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Loans in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bankits Ratable Share.
Appears in 2 contracts
Sources: Revolving Credit Facility (Triumph Group Inc), Revolving Credit Facility (Triumph Group Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such fees shall cease to accrue on the unused portion of the Revolving Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such feessubsection 2.09(a);
(ib) Any amount paid by if any Letter of Credit Liabilities exist at the Borrowers or otherwise received by the Agent for the account of time such Bank becomes a Defaulting Bank under this Agreement then:
(i) the Letter of Credit Liabilities of such Defaulting Bank shall be reallocated among the non-Defaulting Banks in accordance with their respective Commitment Percentages but only to the extent (x) no Default or Event of Default has occurred and is continuing and (y) the sum of each non-Defaulting Bank’s Loans plus its Letter of Credit Liabilities does not exceed its Revolving Commitment;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the Issuing Bank(s) only the Company’s obligations corresponding to such Defaulting Bank’s Letter of Credit Liabilities (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 8.03 for so long as such Letter of Credit Liabilities remain outstanding;
(iii) if the Company cash collateralizes all or any portion of such Defaulting Bank’s Letter of Credit Liabilities pursuant to clause (ii) above, the Company shall not be required to pay any fees to such Defaulting Bank pursuant to subsection 2.09(a) or 2.09(c) with respect to such Defaulting Bank’s Letter of Credit Liabilities during the period such Defaulting Bank’s Letter of Credit Liabilities are cash collateralized;
(iv) if the Letter of Credit Liabilities of the Defaulting Banks are reallocated pursuant to clause (i) above, then the fees payable to the Banks pursuant to subsections 2.09(a) and 2.09(c) shall be similarly reallocated to the same extent; and
(v) if all or any portion of such Defaulting Bank’s Letter of Credit Liabilities is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Issuing Bank or any other than any amounts representing principal or interest Bank hereunder, all facility fees that otherwise would have been payable to such Defaulting Bank (whether on account solely with respect to the portion of fees, indemnity payments or other amounts not constituting principal or interestsuch Defaulting Bank’s Commitment that was utilized by such Letter of Credit Liabilities) will not be paid or distributed and letter of credit fees payable under subsection 2.09(c) with respect to such Defaulting Bank, but will instead ’s Letter of Credit Liabilities shall be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due Issuing Bank(s) until and payable to them, third to the payment extent that such Letter of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting BankCredit Liabilities are reallocated and/or cash collateralized;
(c) The Borrowers may terminate so long as such Bank is a Defaulting Bank, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the unused amount related exposure and the Defaulting Bank’s Letter of Credit Liabilities then outstanding will be 100% covered by the Revolving Commitments of the Commitment non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with paragraph (b) above, and participating interests in any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with paragraph (b) above (and such Defaulting Bank shall not participate therein);
(d) in the event that the Administrative Agent, the Company and each Issuing Bank agrees that a Defaulting Bank upon not less than three (3) Business Days’ prior notice has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent (which will promptly notify Letter of Credit Liabilities of the Banks thereof), and in such event shall be readjusted to reflect the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account inclusion of such Defaulting Bank’s Commitment Percentage and on such date such Bank under 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 Commitment Percentage; provided that, subject to Section 10.22, nothing in this Agreement paragraph (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be d) shall constitute a waiver or release by any party hereunder of any claim any Borrower, the Agent or any arising from such Bank may have against such having been a Defaulting Bank; and
(de) In the event that Company may, with the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as consent of the effective date specified in such notice Administrative Agent and subject to any conditions set forth therein each Issuing Bank:
(which may include arrangements with respect to any amounts then held in i) provided that no Default or Event of Default has occurred and is continuing, terminate the segregated account referred to in Section 2.18(b)), Revolving Commitment of such Bank willand, to in connection therewith, prepay the extent applicableoutstanding Loans of such Bank in full, purchase at par together with accrued interest thereon and any other amounts payable hereunder for the account of such portion Bank; provided that if any Letter of outstanding Advances of the other Banks Credit Liabilities are then outstanding, they should have been reallocated and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis cash collateralized in full in accordance with their respective Commitments, whereupon such Bank will cease to paragraph (b) above; or
(ii) designate a replacement bank meeting the qualifications of an Eligible Assignee. Any prepayment under clause (i) shall be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such Bank was a Defaulting Bank; and provided, further, that except subject to the extent otherwise expressly agreed by provisions of Section 3.04 hereof, and any transfer under clause (ii) shall be subject to the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release provisions of any claim of any party hereunder arising from such Bank’s having been a Defaulting BankSections 3.04 and 10.09 hereof.
Appears in 2 contracts
Sources: Credit Agreement (General Mills Inc), Credit Agreement (General Mills Inc)
Defaulting Banks. Notwithstanding any provision (a) If a Bank becomes, and during the period it remains, a Defaulting Bank, the following provisions shall apply:
(i) such Defaulting Bank’s Letter of this Agreement Credit Liabilities will, subject to the contrarylimitation in the first proviso below and provided that no Event of Default has occurred and is containing, if any automatically be reallocated (effective on the day such Bank becomes a Defaulting Bank, then ) among the following provisions shall apply for so long as such Bank is a Non-Defaulting Banks pro rata in accordance with their respective Commitments; provided that (A) the sum of each Non-Defaulting Bank:’s aggregate principal amount of Loans and allocated share of the Letter of Credit Liabilities may not in any event exceed the Commitment of such Non-Defaulting Bank as in effect at the time of such reallocation and (B) subject to Section 9.14, neither such reallocation nor any payment by a Non-Defaulting Bank pursuant thereto will constitute a waiver or release of any claim the Borrower, the Servicing Agent, any Issuing Bank, or any other Bank may have against such Defaulting Bank or cause such Defaulting Bank to be a Non-Defaulting Bank;
(aii) Such to the extent that any portion (the “unreallocated portion”) of the Defaulting Bank will Bank’s Letter of Credit Liabilities cannot be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights so reallocated, whether by reason of the Banks other first proviso in clause (i) above or otherwise, the Borrower will, not later than Defaulting Banks three Business Days after demand by the Servicing Agent (at the direction of the applicable Issuing Bank(s)), (A) cash collateralize the obligations of the Borrower in respect of such feesLetter of Credit Liabilities in an amount at least equal to the aggregate amount of the unreallocated portion of such Letter of Credit Liabilities, or (B) make other arrangements satisfactory to the Servicing Agent and the applicable Issuing Bank(s), as the case may be, in their reasonable discretion to protect them against the risk of non-payment by such Defaulting Bank;
(iiii) Any amount paid by the Borrowers any payment of principal, interest, fees or otherwise other amounts received by the Servicing Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesvoluntary or mandatory, indemnity payments at maturity, pursuant to Article 6 or other amounts not constituting principal otherwise) or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained received by the Servicing Agent in from a segregated non-interest bearing account until (subject Defaulting Bank pursuant to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will 9.04 shall be applied at such time or times as may be determined by the AgentServicing Agent as follows: first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Servicing Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to any Issuing Bank hereunder; third, to cash collateralize the Letter of Credit Liabilities of such Defaulting Bank in accordance with this Section 2.20; fourth, as the Borrower may request (so long as no Default exists), to the funding of any Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Servicing Agent; fifth, if so determined by the Servicing Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Bank’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize the future Letter of Credit Liabilities of such Defaulting Bank with respect to future Letters of Credit issued under this Agreement; sixth, second to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Banks or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank or the Issuing Banks against such Defaulting Banks, ratably among them in accordance with the amounts Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement; seventh, third so long as no Default exists, to the payment of fees then due and payable any amounts owing to the Non-Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Banks hereunder, ratably among them in accordance with the amounts Bank as a result of such fees then due and payable to them, fourth to the ratable payment Defaulting Bank’s breach of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all its obligations of the Borrowers hereunder, to pay amounts owing under this Agreement Agreement; and eighth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise directjurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Letter of Credit Liabilities in respect of which such Defaulting Bank has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Letter of Credit Liabilities owed to, all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loans of, or Letter of Credit Liabilities owed to, such Defaulting Bank until such time as all Loans and funded and unfunded participations in Letter of Credit Liabilities are held by the Banks pro rata in accordance with the Commitments without giving effect to Section 2.20(a)(i). Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section 2.20(a)(iii) shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto; and
(iv) so long as such Bank is a Defaulting Bank or a Potential Defaulting Bank, the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and such Defaulting Bank’s or such Potential Defaulting Bank’s then outstanding Letter of Credit Liabilities will be 100% covered by the Commitments of the Non-Defaulting Banks and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(a)(ii), and participating interests in any newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Banks in a manner consistent with Section 2.20(a)(ii) (and such Defaulting Bank or Potential Defaulting Bank shall not participate therein).
(iib) Any amount paid by the Borrowers for the account No Commitment of a Defaulting Bank representing principal or interest payable to such Defaulting any Bank shall be paid to such Defaulting Bank increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.20, performance by the same amounts and in the same manner Borrower of its obligations shall not be excused or otherwise modified as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount result of the Commitment operation of this Section 2.20. The rights and remedies against a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or Section 2.20 are in addition to any other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any rights and remedies which the Borrower, the Agent Servicing Agent, any Issuing Bank or any Bank may have against such Defaulting Bank; and.
(dc) In If the event that the Borrowers Borrower, each Issuing Bank and the Servicing Agent agree in writing in their discretion reasonable determination that a Defaulting Bank is or a Potential Defaulting Bank should no longer be deemed to be a Defaulting Bank or a Potential Defaulting Bank, as the case may be, the Servicing Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)cash collateral), such that Bank will, to the extent applicable, purchase at par such that portion of outstanding Advances Loans of the other Banks and/or make or take such other adjustments actions as the Servicing Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks Loans to be funded and held on a pro rata basis by the Banks in accordance with their respective CommitmentsPercentages, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-or Potential Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Borrower while such 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 or Potential Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank or Potential Defaulting Bank.
(d) The Borrower may terminate the unused amount of the Commitment of any Bank that is a Defaulting Bank upon not less than ten Business Days’ prior notice to the Servicing Agent (which shall promptly notify the Banks thereof), and in such event the provisions of Section 2.20(a)(iii) will apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that (i) no Event of Default shall have occurred and be continuing, and (ii) such termination shall not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agents, the Servicing Agent, any Issuing Bank or any Bank may have against such Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Clorox Co /De/), Credit Agreement (Clorox Co /De/)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting No Commitment of any Bank will shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 4.3 or otherwise specifically provided herein, performance by the Company of its obligations shall not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights excused or otherwise modified as a result of the Banks other than Defaulting Banks in respect operation of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent for the account of this Section 4.3. The rights and remedies against a Defaulting Bank under this Agreement Section 4.3 are in addition to any other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by rights and remedies which the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any BorrowerCompany, the Agent or any Bank may have against such Defaulting Bank; and.
(db) In If the event that the Borrowers Company and the Agent agree in writing in their discretion reasonable determination that a Defaulting Bank is should no longer be deemed to be a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b))therein, such that Bank will, to the extent applicable, purchase at par such that portion of outstanding Advances Commitments of the other Banks and/or make or take such other adjustments actions as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks Commitments to be held on a pro rata basis by the Banks in accordance with their respective CommitmentsPercentages, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that provided, that, no adjustments will be made retroactively or with duplication with respect to fees accrued or payments made by or on behalf of the Borrowers Company while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
(c) Notwithstanding anything to the contrary contained in this Agreement, any payment of principal, interest, commitment fees or other amounts received by the Agent for the account of any Defaulting Bank under this Agreement (whether voluntary or mandatory, at maturity or otherwise) shall be applied at such time or times as may be determined by the Agent as follows: first, to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder; second, as the Company may request (so long as no Event of Default shall have occurred and be continuing), to the funding of any Committed Loan in respect of which that Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; third, to the payment of any amounts owing to the Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; fourth, so long as no Event of Default shall have occurred and be continuing, to the payment of any amounts owing to the Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; and fifth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided, that, if (x) such payment is a payment of the principal amount of any Committed Loan in respect of which such Defaulting Bank has not fully funded its appropriate share, and (y) such Committed Loans were made at a time when the applicable conditions set forth in Section 9 were satisfied or waived, such payment shall be applied solely to pay the Committed Loans of all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Committed Loans of such Defaulting Bank and provided, further, that any amounts held as cash collateral for funding obligations of a Defaulting Bank shall be returned to such Defaulting Bank upon the termination of this Agreement and the satisfaction of such Defaulting Bank’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section 4.3 shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
Appears in 2 contracts
Sources: Three Year Revolving Credit Agreement (International Lease Finance Corp), Revolving Credit Agreement (International Lease Finance Corp)
Defaulting Banks. Notwithstanding anything contained in Sections 2.8, 2.9 or any other provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as Bank then: all Letters of Credit Outstanding and Swing Loans outstanding at such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Bankstime, and fifth after the termination all Letters of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank Credit issued or as Swing Loans made while there exists a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid reallocated among the non-Defaulting Banks in accordance with their respective Ratable Shares (such Ratable Shares shall be determined without reference to each Defaulting Bank's Ratable Share) so long as no Potential Default or Event of Default exists on the date of reallocation and thereafter continues uncured, but only to the extent (a) the sum of all non-Defaulting Banks' Revolving Credit Loans then outstanding plus the sum of such non-Defaulting Banks' Ratable Share of the Dollar Equivalent of all Swing Loans then outstanding and Letters of Credit Outstanding at such time does not exceed the total of all non-Defaulting Banks' Revolving Credit Commitments and (b) the aggregate obligation of each non-Defaulting Bank to acquire, refinance or fund any participations in the Defaulting Bank's portion of Letters of Credit Outstanding and Swing Loans pursuant to reallocation contemplated above shall not exceed the positive difference between (i) the Revolving Credit Commitment of such Bank minus (ii) such Bank's Revolving Credit Loans then outstanding plus such Bank's Ratable Share of the Dollar Equivalent of all Swing Loans then outstanding and Letters of Credit Outstanding at such time. If the reallocation described in the preceding sentence cannot, or can only partially, be effected, the Borrowers shall within one Business Day following notice by the Administrative Agent, (1) first, prepay outstanding Swing Loans and (2) second, cash collateralize such Defaulting Bank Bank's portion of Letters of Credit Outstanding (in each case, after giving effect to any partial reallocation pursuant the same amounts immediately preceding sentence). To the extent such Letters of Credit Outstanding and Swing Loans are reallocated pursuant to this Section 2.14, then the fees payable to the Banks pursuant to Section 2.8.2 (but not Section 2.3) shall be adjusted in the same manner as if accordance with such Defaulting Bank were a Nonnon-Defaulting Bank;
(c) The Borrowers may terminate Banks' Ratable Shares. To the unused amount extent a portion of the Commitment Defaulting Bank's Letters of a Defaulting Bank upon not less than three Credit outstanding are cash collateralized pursuant to clause (32) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof)above, and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers shall not be obligated to pay any fees to or for the account of such Defaulting Bank under pursuant to Section 2.8.2 with respect to such Defaulting Bank's Letter of Credit Outstandings during the period such Defaulting Bank's Letter of Credit Outstandings are cash collateralized. To the extent such Letters of Credit Outstanding are not reallocated pursuant to this Agreement (whether on account Section 2.14, or the Defaulting Bank's Ratable Share of principalLetters of Credit Outstanding have not been cash collateralized, interestthen, fees, indemnity without prejudice to any rights or other amounts), provided that such termination will not be deemed to be a waiver or release remedies of any claim any Borrower, the Agent Issuing Bank or any Bank may hereunder, all Commitment Fees that otherwise would have against been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank; and
(d's Commitment that was utilized by such Letters of Credit Outstanding) and Letter of Credit Fees with respect to such Defaulting Bank's Ratable Share of the Letters of Credit Outstanding shall be payable to the Issuing Bank. Subject to Section 11.23, nothing contained in this Section or elsewhere in this Agreement and no reallocation of any Defaulting Bank's Ratable Share of any obligation hereunder shall relieve such Defaulting Bank of its obligation to fund any portion of any amount owed by such Defaulting Bank hereunder. In the event that the Borrowers Administrative Agent, the Borrower, and the Agent Issuing Banks each agree in writing in their discretion that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify Letters of Credit Outstanding and the parties hereto, whereupon as Swing Loans outstanding shall be readjusted to reflect the inclusion of the effective date specified in such notice Bank's Revolving Credit Commitment and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b))on such date, such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Loans of the other Banks and/or make such other adjustments as the Administrative Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Loans in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bankits Ratable Share.
Appears in 2 contracts
Sources: Credit Agreement (Triumph Group Inc), Credit Agreement (Triumph Group Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such facility fees shall cease to accrue on the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees2.10(a);
(ib) Any amount paid by the Borrowers Commitment and Credit Exposure of such Defaulting Bank shall not be included in determining whether the Required Banks have taken or otherwise received by may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.05); provided that this clause (b) shall not apply to the Agent for the account vote of a Defaulting Bank under this Agreement in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank affected thereby;
(c) with respect to any Fronted LC Exposure (if any):
(i) all or any part of the Fronted LC Exposure of such Defaulting Bank (other than such Fronted LC Exposure that is cash collateralized pursuant to Section 2.16(b)) shall be reallocated among the Non-Defaulting Banks in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all Non-Defaulting Banks’ Credit Exposures plus such Defaulting Bank’s LC Exposure does not exceed the total of all Non-Defaulting Banks’ Commitments and (y) such reallocation does not, as to any amounts representing principal non-Defaulting Bank, cause such non-Defaulting Bank’s Credit Exposure to exceed its Commitment (and, if such reallocation can only partially be effected, such reallocation shall be made ratably among the then outstanding Fronted Letters of Credit, unless otherwise agreed by the Fronting Issuing Banks and the Administrative Agent);
(ii) if the reallocation described in clause (i) above cannot, or interest can only partially, be effected, the relevant Account Party under each outstanding Fronted Letter of Credit shall within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the applicable Fronting Issuing Bank only such Account Party’s obligations in respect thereof corresponding to such Defaulting Bank’s Fronted LC Exposure thereunder (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.03(e) for so long as such Fronted LC Exposure is outstanding;
(iii) if the Account Parties cash collateralizes any portion of such Defaulting Bank’s Fronted LC Exposure pursuant to clause (ii) above, the Company shall not be required to pay any letter of credit fees to such Defaulting Bank pursuant to Section 2.10(b) with respect to such Defaulting Bank’s Fronted LC Exposure during the period and to the extent that such Defaulting Bank’s Fronted LC Exposure is cash collateralized;
(iv) if the Fronted LC Exposure of the Non-Defaulting Banks is reallocated pursuant to clause (i) above, then the letter of credit fees payable to the Banks pursuant to Section 2.10(b) shall be adjusted in accordance with such Non-Defaulting Banks’ Applicable Percentages;
(v) if all or any portion of such Defaulting Bank’s Fronted LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any applicable Fronting Issuing Bank or any other Bank hereunder, all facility fees that otherwise would have been payable to such Defaulting Bank (whether on account solely with respect to the portion of fees, indemnity payments or other amounts not constituting principal or interestsuch Defaulting Bank’s Commitment that was utilized by such Fronted LC Exposure) will not be paid or distributed and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Bank’s Fronted LC Exposure shall be payable to the applicable Fronting Issuing Banks until and to the extent that such Fronted LC Exposure is reallocated and/or cash collateralized;
(vi) so long as such Bank is a Defaulting Bank, but no Fronting Issuing Bank shall be required to issue, amend or increase any Fronted Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Bank’s then outstanding Fronted LC Exposure will instead be retained 100% covered by the Agent Commitments of the Non-Defaulting Banks and/or cash collateral will be provided by the Account Parties in accordance with Section 2.17(c), and participating interests in any newly issued or increased Fronted Letter of Credit shall be allocated among Non-Defaulting Banks in a segregated manner consistent with Section 2.17(c)(i) (and such Defaulting Bank shall not participate therein); and
(vii) if (i) a Bankruptcy Event or a Bail-In Action with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any Fronting Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such Fronting Issuing Bank shall not be required to issue, amend or increase any Fronted Letter of Credit, unless such Fronting Issuing Bank shall have entered into arrangements with the Account Parties or such Bank, satisfactory to such Fronting Issuing Bank, to defease any risk to it in respect of such Bank hereunder;
(d) with respect to any Syndicated LC Exposure (if any):
(i) letter of credit fees shall cease to accrue on such Defaulting Bank’s Syndicated LC Exposure pursuant to Section 2.10(b);
(ii) with respect to any Syndicated Letter of Credit outstanding at the time such Bank becomes a Defaulting Bank, with the consent of the beneficiary thereunder to the extent required by the terms thereof or under applicable law (including, if applicable, the Uniform Customs and Practices for Documentary Credits governing such Syndicated Letter of Credit), (x) all or any part of the Syndicated LC Exposure of such Defaulting Bank (other than any such Syndicated LC Exposure for which Bank of America is then acting as a Confirming Bank for such Defaulting Bank pursuant to Section 2.16(b)) shall be reallocated among the Non-Defaulting Banks in accordance with their respective Applicable Percentages but only to the extent (I) the sum of all Non-Defaulting Banks’ Credit Exposures plus such Defaulting Bank’s LC Exposure does not exceed the total of all Non-Defaulting Banks’ Commitments and (II) such reallocation does not, as to any non-interest bearing account Defaulting Bank, cause such non-Defaulting Bank’s Credit Exposure to exceed its Commitment and (y) each such Syndicated Letter of Credit (other than any Syndicated Letter of Credit in respect of which Bank of America is then acting as a Confirming Bank for such Bank pursuant to Section 2.16(b)) shall be amended by the Administrative Agent to specify the Banks that are parties to such Syndicated Letter of Credit (excluding, for avoidance of doubt, such Bank), after giving effect to such event, and such Banks’ respective Applicable Percentages as of the effective date of such amendment;
(iii) if the Syndicated LC Exposure of the Non-Defaulting Banks is reallocated with respect to any Syndicated Letter of Credit pursuant to clause (ii) above, then the letter of credit fees payable to the Banks with respect to such Syndicated Letter of Credit pursuant to Section 2.10(b) shall be adjusted in accordance with such Non-Defaulting Banks’ Applicable Percentages; and
(iv) the Syndicated LC Exposures of the Banks in respect of any newly issued Syndicated Letter of Credit shall be allocated among Non-Defaulting Banks in a manner consistent with clause (ii) above (and such Defaulting Bank shall have no obligation under each such Syndicated Letter of Credit to the extent such Syndicated LC Exposures in respect thereof are so reallocated);
(e) until such time as the readjustments with respect to such Defaulting Bank are effected pursuant to subsection (f) of this Section, the Company may, upon notice to such Defaulting Bank and the Administrative Agent, require such Bank, at the expense of such Defaulting Bank, to assign, without recourse (in accordance with and subject to the restrictions contained in Section 2.18(d10.06)) , all its interests, rights and obligations under this Agreement and the termination Letters of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the AgentCredit issued, to the fullest extent permitted by lawor participated in, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to any Person that shall assume such obligations (which assignee may be another Bank, if it accepts such assignment) with (and subject to) the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination consent of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
Administrative Agent (iiwhich consent shall not unreasonably be withheld); provided that (i) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid have received payment of an amount equal to the outstanding amount of its LC Disbursements (including participations therein), principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding LC Disbursements, Loans and accrued interest and fees) or the applicable Account Parties (in the case of all other amounts) (provided that the Account Parties may deduct, or cause such assignee to deduct, from amounts payable by them or it, as applicable, to such Defaulting Bank hereunder all fees, costs and expenses reasonably incurred by the Account Parties in the same amounts effecting such assignment) and in the same manner as if (ii) concurrently with such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice assignment, to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account extent any LC Exposure of such Defaulting Bank under theretofore shall have been reallocated pursuant to this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any BorrowerSection, the Agent or any Bank may have against Credit Exposures of the Banks (including, after giving effect to such assignment, such assignee) shall be readjusted (and payments made by the relevant parties) in a manner consistent with subsection (f) of this Section, such that, after giving effect thereto, the Banks (including such assignee, but not such Defaulting Bank; and
(d) In shall hold the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts Credit Exposures then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective CommitmentsApplicable Percentages; and
(f) in the event that the Administrative Agent, whereupon the Account Parties and (to the extent there shall be Fronted Letters of Credit then outstanding) each Fronting Issuing Bank each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank will to be a Defaulting Bank, then such Bank shall cease to be a Defaulting Bank and will the Credit Exposures of the Banks shall be readjusted as follows:
(i) with respect to any Fronted LC Exposure then outstanding, such Fronted LC Exposure shall be readjusted to reflect the inclusion of such Bank’s Commitment and such Bank shall purchase at par such of the unreimbursed LC Disbursements then outstanding (if any) of the other Banks in respect of such Fronted LC Exposure as the Administrative Agent shall determine may be necessary in order for such Bank to hold such LC Disbursements in accordance with its Applicable Percentage;
(ii) with respect to any Syndicated LC Exposure then outstanding, (x) with the consent of the beneficiary under each outstanding Syndicated Letter of Credit to the extent required by the terms thereof or under applicable law (including, if applicable, the Uniform Customs and Practices for Documentary Credits governing such Syndicated Letter of Credit) and to the extent such Syndicated Letter of Credit was theretofore amended or issued pursuant to subsection (d)(ii) or (d)(iv), as applicable, of this Section to reflect the exclusion of such Bank’s Commitment, (I) each such Syndicated Letter of Credit shall be amended by the Administrative Agent to specify the Banks (including such Bank) that are then parties to such Syndicated Letter of Credit and such Banks’ respective Applicable Percentages, in each case reflecting the inclusion of such Bank’s Commitment, as of the effective date of such amendment and (II) if such Syndicated Letter of Credit was not theretofore amended pursuant to subsection (d)(ii) of this Section to reflect the exclusion of such Bank’s Commitment thereunder, but instead the amount of such Syndicated Letter of Credit was increased or a new Letter of Credit was issued hereunder in favor of the beneficiary of such Syndicated Letter of Credit in order to provide such beneficiary with an aggregate undrawn amount of Letters of Credit from the Non-Defaulting Bank Banks (and each including, if applicable, the applicable Fronting Issuing Banks) in the amount required by such beneficiary, the amount of such Syndicated Letter of Credit or new Letter of Credit shall be amended by the Administrative Agent to decrease the amount thereof, or the Company shall arrange for such new Letter of Credit to be surrendered by such beneficiary to the Administrative Agent or the applicable Fronting Issuing Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis , in order to reflect the foregoing); inclusion of such Bank’s Commitment pursuant to the amendment to such Syndicated Letter of Credit under sub-clause (I) above (provided that no adjustments will that, notwithstanding anything herein to the contrary, the Company shall not be made retroactively required to pay any letter of credit fees to such Bank pursuant to Section 2.10(b) until such amendments with respect to fees accrued or payments made by or on behalf such Letters of Credit shall have become effective); (y) (subject to clause (x) being satisfied with respect to a Syndicated Letter of Credit) the Syndicated LC Exposure of the Borrowers while Banks with respect to such Bank was a Defaulting Bank; and provided, further, that except Syndicated Letter of Credit shall be readjusted to reflect the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release inclusion of any claim of any party hereunder arising from such Bank’s having been Commitment; and (z) (subject to clause (x) being satisfied with respect to a Defaulting BankSyndicated Letter of Credit) such Bank shall purchase at par such of the unreimbursed LC Disbursements then outstanding (if any) of the other Banks with respect to such Syndicated Letter of Credit as the Administrative Agent shall determine may be necessary in order for such Bank to hold such LC Disbursements in accordance with its Applicable Percentage; and
(iii) with respect to any Loans then outstanding, 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 Applicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Lincoln National Corp), Credit Agreement (Lincoln National Corp)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 2.06;
(without prejudice b) the Bank Percentage of such Defaulting Bank shall not be included in determining whether all Banks or the Required Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.08), provided that this clause (b) shall not apply to the rights vote of a Defaulting Bank in the Banks case of an amendment, waiver or other than Defaulting Banks in respect modification requiring the consent of such fees)Bank or each Bank affected thereby;
(c) if any L/C Obligations exist at the time a Bank becomes a Defaulting Bank then:
(i) Any all or any part of such Defaulting Bank’s Bank Percentage of the L/C Obligations shall be reallocated among the non-Defaulting Banks in accordance with their respective Bank Percentages but only to the extent the sum of all non-Defaulting Banks’ Standby Loans and their Bank Percentages of the L/C Obligations and the outstanding Competitive Loans expressed as a dollar amount paid plus such Defaulting Bank’s Bank Percentage of the L/C Obligations does not exceed the total of all non-Defaulting Banks’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Borrowers or otherwise received by Agent, cash collateralize such Defaulting Bank’s Bank Percentage of the Agent L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Article VIII for so long as such Defaulting Bank’s Bank Percentage of the account L/C Obligations is outstanding;
(iii) if the Borrower cash collateralizes any portion of a such Defaulting Bank’s Bank Percentage of the L/C Obligations pursuant to Section 2.23(c)(ii), the Borrower shall not be required to pay any fees to such Defaulting Bank under pursuant to Section 3.03 with respect to such Defaulting Bank’s Bank Percentage of the L/C Obligations during the period such Defaulting Bank’s Bank Percentage of the L/C Obligations is cash collateralized;
(iv) if the Bank Percentages of the L/C Obligations of the non-Defaulting Banks are reallocated pursuant to Section 2.23(c)(i), then the fees payable to the Banks pursuant to Section 2.06 and Section 3.03 shall be adjusted in accordance with such non-Defaulting Banks’ Bank Percentages; and
(v) if any Defaulting Bank’s Bank Percentage of the L/C Obligations is neither cash collateralized nor reallocated pursuant to this Agreement other than Section 2.23(c), then, without prejudice to any amounts representing principal rights or interest remedies of the Issuing Bank or any Bank hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such Defaulting Bank’s Bank Percentage of the L/C Obligations) and letter of credit fees payable under Section 3.03 with respect to such Defaulting Bank’s Bank Percentage of the L/C Obligations shall be payable to the Issuing Bank until such Defaulting Bank’s Bank Percentage of the L/C Obligations is cash collateralized and/or reallocated;
(d) 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 and/or cash collateral provided by the Borrower in accordance with Section 2.23(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 Section 2.23(c)(i) (and Defaulting Banks shall not participate therein); and
(e) any amount payable to such Defaulting Bank hereunder (whether on account of feesprincipal, indemnity payments interest, fees or other amounts not constituting principal or interestotherwise and including any amount that would otherwise be payable to such Defaulting Bank) will not be paid or shall, in lieu of being distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (and, subject to Section 2.18(d)) the termination any applicable requirements of the Commitments and payment in full of all obligations of the Borrowers hereunder and will law, be applied at such time or times as may be determined by the AgentAgent (i) first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Bank to the Issuing Bank hereunder, (iii) third, if so determined by the Agent or requested by an Issuing Bank, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any existing or future participating interest in any Letter of Credit, (iv) fourth, to the funding of any 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, (v) fifth, if so determined by the Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any Loans under this Agreement, second (vi) sixth, to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Banks or an Issuing Bank as a result of any judgment of a court of competent jurisdiction obtained by any Bank or such Issuing Bank against such Defaulting Banks, ratably among them in accordance with the amounts Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement, third (vii) seventh, to the payment of fees then due and payable any amounts owing to the Non-Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Banks hereunder, ratably among them in accordance with the amounts Bank as a result of such fees then due and payable to them, fourth to the ratable payment Defaulting Bank’s breach of other amounts then due and payable to the Non-Defaulting Banksits obligations under this Agreement, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder(viii) eighth, to pay amounts owing under this Agreement to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise direct.
jurisdiction, provided, with respect to this clause (iiviii), that if such payment is (x) Any a prepayment of the principal amount paid by the Borrowers for the account of any Loans or Reimbursement Obligations which a Defaulting Bank representing principal or interest payable to has funded its participation obligations and (y) made at a time when the conditions set forth in Section 5.01 are satisfied, such Defaulting Bank payment shall be paid applied solely to such Defaulting Bank in prepay the same amounts Loans of, and in the same manner as if such Defaulting Bank were a NonReimbursement Obligations owed to, all non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ Banks pro rata prior notice to being applied to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release prepayment of any claim Loans, or Reimbursement Obligations owed to, any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) . In the event that the Borrowers Agent, the Borrower and the Agent agree in writing in their discretion Issuing Bank each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify the parties hereto, whereupon as Bank Percentages of the effective L/C Obligations of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Standby Loans of the other Banks and/or make such other adjustments as the Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Loans in accordance with their respective Commitments, whereupon such its Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting BankPercentage.
Appears in 2 contracts
Sources: Five Year Competitive Advance and Revolving Credit Facility Agreement (Scripps Networks Interactive, Inc.), Five Year Competitive Advance and Revolving Credit Facility Agreement (Scripps Networks Interactive, Inc.)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement anything to the contrarycontrary contained herein, if the Maximum Credit Amount of a Defaulting Bank shall not be included in determining whether all Banks or the Required Banks have taken or may take any action hereunder (including approval of any redetermination of the Borrowing Base pursuant to Article 4 and any consent to any amendment or waiver pursuant to Section 14.2); provided that, any waiver, amendment or modification requiring the consent of all Banks or each affected Bank which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank; and provided further that in no event shall (i) the Commitment or Maximum Credit Amount of any Defaulting Bank be increased without the consent of such Defaulting Bank, or (ii) the Termination Date or any date fixed for any payment of principal of or interest on the Loan or any fees hereunder be postponed without the consent of such Defaulting Bank.
(b) If any Bank shall fail to make any payment referenced in clause (a) or (b) of the definition of “Defaulting Bank”, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Bank and for the benefit of the Administrative Agent or any Letter of Credit Issuer to satisfy such Bank’s obligations hereunder until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Bank hereunder; in the case of each of (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
(c) Borrower shall not be obligated to pay the Administrative Agent any Defaulting Bank’s ratable share of the fees described in Sections 2.11, 2.12 or 2.13 (notwithstanding anything to the contrary in such sections) for the period commencing on the day such Defaulting Bank becomes a Defaulting Bank, then the following provisions shall apply Bank and continuing for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease continues to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Laredo Petroleum - Dallas, Inc.), Credit Agreement (Laredo Petroleum Holdings, Inc.)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled Facility fees shall cease to any fees accruing during such period accrue pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount portion of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(db) the Commitment of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 8.01); provided, that this paragraph (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification pursuant to clauses (i) through (vi) of Section 8.01.
(c) if any LC Outstandings exist at the time such Bank becomes a Defaulting Bank, then:
(i) all or any part of the LC Outstandings of such Defaulting Bank shall be reallocated among the non-Defaulting Banks in accordance with their respective Commitment Percentages but only to the extent (x) the sum of all non-Defaulting Banks’ Outstanding Credits plus such Defaulting Bank’s LC Outstandings does not exceed the total of all non-Defaulting Banks’ Commitments, (y) the sum of each non-Defaulting Bank’s Outstanding Credits plus the portion of such Defaulting Bank’s LC Outstandings allocated to such non-Defaulting Bank does not exceed such non-Defaulting Bank’s Commitment and (z) the sum of each non-Defaulting Bank’s Outstanding Credits with respect to any Borrower plus the portion of such Defaulting Bank’s LC Outstandings with respect to such Borrower allocated to such non-Defaulting Bank does not exceed such non-Defaulting Bank’s Commitment Percentage of the sublimit applicable to such Borrower pursuant to Section 2.01(a);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the ▇▇ ▇▇▇▇▇ only such Borrower’s obligations corresponding to such Defaulting Bank’s LC Outstandings (after giving effect to any partial reallocation pursuant to clause (i) above) in a manner reasonably acceptable to such Borrower, the Administrative Agent and the applicable ▇▇ ▇▇▇▇▇ for so long as such LC Outstandings are outstanding;
(iii) if any Borrower cash collateralizes any portion of such Defaulting Bank’s LC Outstandings pursuant to clause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.04(b) with respect to such Defaulting Bank’s LC Outstandings during the period such Defaulting Bank’s LC Outstandings is cash collateralized;
(iv) if the LC Outstandings of the non-Defaulting Banks are reallocated pursuant to clause (i) above, then the fees payable to the Banks pursuant to Section 2.04(b) shall be adjusted in accordance with such non-Defaulting Banks’ Applicable Percentages;
(v) if all or any portion of such Defaulting Bank’s LC Outstandings are neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any LC Bank or any other Bank hereunder, all facility fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Outstandings) and the Letter of Credit Fees payable under Section 2.04(b) with respect to such Defaulting Bank’s LC Outstandings shall be payable to the Administrative Agent, for the account of the ▇▇ ▇▇▇▇▇ (ratably in accordance with the respective aggregate stated amounts of the Letters of Credit issued by the ▇▇ ▇▇▇▇▇), until and to the extent that such LC Outstandings are reallocated and/or cash collateralized; and
(vi) so long as such Bank is a Defaulting Bank, no LC Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Bank’s LC Outstandings will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Borrower in accordance with Section 8.11(c), and participating interests in any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 8.11(c)(i) (and such Defaulting Bank shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, no LC Bank shall be required to issue, amend or increase any Letter of Credit, unless the ▇▇ ▇▇▇▇▇ shall have entered into arrangements with the Borrower or such Bank, satisfactory to such ▇▇ ▇▇▇▇▇ to defease any risk to it in respect of such Bank hereunder. In the event that the Borrowers Administrative Agent, the Borrower and the Agent agree in writing in their discretion ▇▇ ▇▇▇▇▇ each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as then LC Outstandings of the effective Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment, and on such date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding the Advances of the other Banks and/or make such other adjustments as the Administrative Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Advances in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bankits Commitment Percentage.
Appears in 2 contracts
Sources: Credit Agreement (Uil Holdings Corp), Credit Agreement (Uil Holdings Corp)
Defaulting Banks. Notwithstanding any provision (a) If a Bank becomes, and during the period it remains, a Defaulting Bank, the following provisions shall apply:
(i) such Defaulting Bank’s Letter of this Agreement Credit Liabilities will, subject to the contrarylimitation in the first proviso below and provided that no Event of Default has occurred and is containing, if any automatically be reallocated (effective on the day such Bank becomes a Defaulting Bank, then ) among the following provisions shall apply for so long as such Bank is a Non-Defaulting Banks pro rata in accordance with their respective Commitments; provided that (A) the sum of each Non-Defaulting Bank:’s aggregate principal amount of Loans and allocated share of the Letter of Credit Liabilities may not in any event exceed the Commitment of such Non-Defaulting Bank as in effect at the time of such reallocation and (B) neither such reallocation nor any payment by a Non-Defaulting Bank pursuant thereto will constitute a waiver or release of any claim the Borrower, the Servicing Agent, any Issuing Bank, or any other Bank may have against such Defaulting Bank or cause such Defaulting Bank to be a Non-Defaulting Bank;
(aii) Such to the extent that any portion (the “unreallocated portion”) of the Defaulting Bank will Bank’s Letter of Credit Liabilities cannot be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights so reallocated, whether by reason of the Banks other first proviso in clause (i) above or otherwise, the Borrower will, not later than Defaulting Banks three Business Days after demand by the Servicing Agent (at the direction of the applicable Issuing Bank(s)), (A) cash collateralize the obligations of the Borrower in respect of such feesLetter of Credit Liabilities in an amount at least equal to the aggregate amount of the unreallocated portion of such Letter of Credit Liabilities, or (B) make other arrangements satisfactory to the Servicing Agent and the applicable Issuing Bank(s), as the case may be, in their reasonable discretion to protect them against the risk of non-payment by such Defaulting Bank;
(iiii) Any amount paid by the Borrowers any payment of principal, interest, fees or otherwise other amounts received by the Servicing Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesvoluntary or mandatory, indemnity payments at maturity, pursuant to Article 6 or other amounts not constituting principal otherwise) or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained received by the Servicing Agent in from a segregated non-interest bearing account until (subject Defaulting Bank pursuant to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will 9.04 shall be applied at such time or times as may be determined by the AgentServicing Agent as follows: first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Servicing Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to any Issuing Bank hereunder; third, to cash collateralize the Letter of Credit Liabilities of such Defaulting Bank in accordance with this Section 2.20; fourth, as the Borrower may request (so long as no Default exists), to the funding of any Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Servicing Agent; fifth, if so determined by the Servicing Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Bank’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize the future Letter of Credit Liabilities of such Defaulting Bank with respect to future Letters of Credit issued under this Agreement; sixth, second to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Banks or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank or the Issuing Banks against such Defaulting Banks, ratably among them in accordance with the amounts Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement; seventh, third so long as no Default exists, to the payment of fees then due and payable any amounts owing to the Non-Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Banks hereunder, ratably among them in accordance with the amounts Bank as a result of such fees then due and payable to them, fourth to the ratable payment Defaulting Bank's breach of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all its obligations of the Borrowers hereunder, to pay amounts owing under this Agreement Agreement; and eighth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise directjurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Letter of Credit Liabilities in respect of which such Defaulting Bank has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Letter of Credit Liabilities owed to, all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loans of, or Letter of Credit Liabilities owed to, such Defaulting Bank until such time as all Loans and funded and unfunded participations in Letter of Credit Liabilities are held by the Banks pro rata in accordance with the Commitments without giving effect to Section 2.20(a)(i). Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section 2.20(a)(iii) shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto; and
(iv) so long as such Bank is a Defaulting Bank or a Potential Defaulting Bank, the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and such Defaulting Bank’s or such Potential Defaulting Bank’s then outstanding Letter of Credit Liabilities will be 100% covered by the Commitments of the Non-Defaulting Banks and/or cash collateral will be provided by the Borrower in accordance with Section 2.20(a)(ii), and participating interests in any newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Banks in a manner consistent with Section 2.20(a)(ii) (and such Defaulting Bank or Potential Defaulting Bank shall not participate therein).
(iib) Any amount paid by the Borrowers for the account No Commitment of a Defaulting Bank representing principal or interest payable to such Defaulting any Bank shall be paid to such Defaulting Bank increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.20, performance by the same amounts and in the same manner Borrower of its obligations shall not be excused or otherwise modified as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount result of the Commitment operation of this Section 2.20. The rights and remedies against a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or Section 2.20 are in addition to any other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any rights and remedies which the Borrower, the Agent Servicing Agent, any Issuing Bank or any Bank may have against such Defaulting Bank; and.
(dc) In If the event that the Borrowers Borrower, each Issuing Bank and the Servicing Agent agree in writing in their discretion reasonable determination that a Defaulting Bank is or a Potential Defaulting Bank should no longer be deemed to be a Defaulting Bank or a Potential Defaulting Bank, as the case may be, the Servicing Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)cash collateral), such that Bank will, to the extent applicable, purchase at par such that portion of outstanding Advances Loans of the other Banks and/or make or take such other adjustments actions as the Servicing Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks Loans to be funded and held on a pro rata basis by the Banks in accordance with their respective CommitmentsPercentages, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-or Potential Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Borrower while such 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 or Potential Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank or Potential Defaulting Bank.
(d) The Borrower may terminate the unused amount of the Commitment of any Bank that is a Defaulting Bank upon not less than ten Business Days’ prior notice to the Servicing Agent (which shall promptly notify the Banks thereof), and in such event the provisions of Section 2.20(a)(iii) will apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that (i) no Event of Default shall have occurred and be continuing, and (ii) such termination shall not be deemed to be a waiver or release of any claim the Borrower, the Administrative Agents, the Servicing Agent, any Issuing Bank or any Bank may have against such Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Clorox Co /De/), Credit Agreement (Clorox Co /De/)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long then, until such time as such Bank is no longer a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice , to the rights of the Banks other than Defaulting Banks in respect of such fees);extent permitted by applicable law:
(i) Such Defaulting Bank’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Banks.
(ii) Any amount paid by the Borrowers payment of principal, interest, fees or otherwise other amounts received by the Administrative Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesvoluntary or mandatory, indemnity payments at maturity, pursuant to Article VI or other amounts not constituting principal otherwise) or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained received by the Administrative Agent in from a segregated non-interest bearing account until (subject Defaulting Bank pursuant to Section 2.18(d)) the termination any right of the Commitments and payment in full of all obligations of the Borrowers hereunder and will setoff shall be applied at such time or times as may be determined by the AgentAdministrative Agent as follows: first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Bank’s potential future funding obligations with respect to Loans under this Agreement; fourth, second to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank against such Defaulting Banks, ratably among them in accordance with the amounts Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement; fifth, third so long as no Default or Event of Default exists, to the payment of fees then due and payable any amounts owing to the Non-Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Banks hereunder, ratably among them in accordance with the amounts Bank as a result of such fees then due and payable to them, fourth to the ratable payment Defaulting Bank’s breach of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all its obligations of the Borrowers hereunder, to pay amounts owing under this Agreement Agreement; and sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise direct.
jurisdiction; provided that if (iix) Any such payment is a payment of the principal amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to any Loans in respect of which such Defaulting Bank has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall be paid applied solely to such Defaulting Bank in pay the same amounts and in the same manner as if such Defaulting Bank were a Loans of all Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of Banks on a Defaulting Bank upon not less than three (3) Business Days’ pro rata basis prior notice to being applied to the Agent (which will promptly notify the Banks thereof), and in such event the provisions payment of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account any Loans of such Defaulting Bank until such time as all Loans are held by the Banks pro rata in accordance with the Commitments under this Agreement (whether on account of principalAgreement. Any payments, interest, fees, indemnity prepayments or other amounts), provided amounts paid or payable to a Defaulting Bank that such termination will not are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section 2.15(a)(ii) shall be deemed paid to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against and redirected by such Defaulting Bank; and, and each Bank irrevocably consents thereto.
(diii) In the event that the Borrowers A Defaulting Bank shall not be entitled to receive, and the Borrower shall not be required to pay, any Facility Fee for any period during which such Bank is a Defaulting Bank except on (or on the portion of its Commitment equal to) the outstanding principal amount of the Loans of such Bank.
(b) If the Borrower and the Administrative Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)cash collateral), such Bank will, to the extent applicable, purchase at par such that portion of outstanding Advances Loans of the other Banks and/or make or take such other adjustments actions as the Administrative Agent may determine to be necessary to cause the Revolving Credit Obligations of Loans to be held pro rata by the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Borrower while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such that Bank’s having been a Defaulting Bank.
Appears in 2 contracts
Sources: Revolving Credit Facility Agreement (Home Depot, Inc.), 364 Day Revolving Credit Facility Agreement (Home Depot, Inc.)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank hereunder (whether on account of feesprincipal, indemnity payments interest, fees or other amounts not constituting principal or interestotherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to this Agreement) will not be paid or shall, in lieu of being distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination any applicable requirements of the Commitments and payment in full of all obligations of the Borrowers hereunder and will law, be applied by the Agent(i) first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them(ii) second, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or Bank, in each case, as otherwise directed by a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) jurisdiction. In the event that the Borrowers Administrative Agent and the Agent Borrower both agree in writing in their discretion that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify the parties hereto, whereupon as Loans of the effective Banks shall be readjusted and reallocated to reflect the inclusion of such Bank and on such date specified 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 notice and subject Bank to any conditions hold such Loans in accordance with its applicable Percentage after giving effect to such reallocation; provided notwithstanding the foregoing, the Borrower must comply with all applicable terms hereof. Notwithstanding anything set forth therein (which may include arrangements herein to the contrary, a Defaulting Bank shall not have any voting or consent rights under or with respect to any amounts then held Credit Documents or constitute a “Bank” for any voting or consent rights under or with respect to any Credit Document, in any matter requiring the segregated account referred to in Section 2.18(b))consent of Required Banks. Moreover, such Bank willfor the purposes of determining Required Banks and the Loans held, to Defaulting Banks shall be excluded from the extent applicabletotal Loans outstanding. For purposes of clarification, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis shall not lose its right to reflect the foregoing); provided that no adjustments will be made retroactively vote with respect to fees accrued or payments made by or on behalf matters set forth in clauses (i) and (ii) of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.Section 11.11 below
Appears in 2 contracts
Sources: Credit Agreement (Black Hills Corp /Sd/), Credit Agreement (Black Hills Corp /Sd/)
Defaulting Banks. Notwithstanding (a) In the event that, at any provision of this Agreement one time (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Loan to the contrary, if Company and (iii) the Company shall be required to make any Bank becomes a payment hereunder to or for the account of such Defaulting Bank, then the following provisions shall apply for Company may, so long as no Event of Default shall occur or be continuing at such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments time and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by applicable law, set off and otherwise apply the obligations of the Company to make such payment to or for the account of such Defaulting Bank against the obligation of such Defaulting Bank to make such Defaulted Loan. In the event that, on any date, the Company shall so set off and otherwise apply its obligation to make any such payment against the obligation of such Defaulting Bank to make any such Defaulted Loan on or prior to such date, the amount so set off and otherwise applied by the Company shall constitute for all purposes of this Agreement a Loan by such Defaulting Bank made on the date of such setoff under the provision hereof pursuant to which such Defaulted Loan was originally required to have been made. Such Loan shall be considered, for all purposes of this Agreement, to comprise part of the Loan in connection with which such Defaulted Loan was originally required to have been made. The Company shall notify the Administrative Agent at any time the Company exercises its right of set-off pursuant to this subsection (a) and shall set forth in such notice (A) the name of the Defaulting Bank and the Defaulted Loan required to be made by such Defaulting Bank and (B) the amount set off and otherwise applied in respect of such Defaulted Loan pursuant to this subsection (a). Any portion of such payment otherwise required to be made by the Company to or for the account of such Defaulting Bank which is paid by the Company, after giving effect to the making amount set off and otherwise applied by the Company pursuant to this subsection (a), shall be applied by the Administrative Agent as specified in subsection (b) of payments from this Section 2.24.
(b) In the event that, at any one time, (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Amount to the Administrative Agent or any of the other Banks and (iii) the Company shall make any payment hereunder to the Administrative Agent for the account of such Defaulting Bank, then the Administrative Agent may, on its behalf or on behalf of such other Bank and to the fullest extent permitted by applicable law, apply at such time the amount so paid by the Company to time or for the account of such Defaulting Bank to the payment of each such Defaulted Amount to the extent required to pay such Defaulted Amount. In the event that the Administrative Agent shall so apply any such amount to the payment of any such Defaulted Amount on any date, the amount so applied by the Administrative Agent shall constitute for all purposes of this Agreement payment, to such extent, of such Defaulted Amount on such date. Any such amount so applied by the Administrative Agent shall be retained by the Administrative Agent or distributed by the Administrative Agent to such other Banks in the following order of priority: first first, to the payment of Administrative Agent for any amounts Defaulted Amounts then owing by such Defaulting Bank to the Agent under this Agreementit, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banksin its capacity as such, ratably among them in accordance with such Defaulted Amounts then owing to the amounts of such interest Administrative Agent; second, to the Issuing Banks and the Swing Line Bank for any Defaulted Amounts then due and payable owing to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunderin their capacities as such, ratably among them in accordance with the amounts of such fees respective Defaulted Amounts then due and payable to them, fourth owing to the ratable payment of other amounts then due Issuing Banks and payable to the Non-Defaulting Banks, Swing Line Bank; and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunderthird, to pay amounts any Bank for any Defaulted Amounts then owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable Bank, ratably in accordance with such respective Defaulted Amounts then owing to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;.
(c) The Borrowers may terminate the unused amount of the Commitment of rights and remedies against a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or Section 2.24 are in addition to other amounts), provided rights and remedies that the Company may have against such termination will not be deemed Defaulting Bank with respect to be a waiver or release of any claim any Borrower, Defaulted Loan and that the Administrative Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting BankDefaulted Amount.
Appears in 2 contracts
Sources: Credit Agreement (Western Union CO), Credit Agreement (Western Union CO)
Defaulting Banks. Notwithstanding (a) In the event that, at any provision one time, (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Amount to any Agent or any of this Agreement the other Banks and (iii) any Account Party shall make any payment hereunder or under any other Loan Document to the contrary, if any Bank becomes a Administrative Agent for the account of such Defaulting Bank, then the following provisions shall Administrative Agent may, on its behalf or on behalf of such other Banks and to the fullest extent permitted by applicable law, apply at such time the amount so paid by such Account Party to or for so long as the account of such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights payment of each such Defaulted Amount to the Banks extent required to pay such Defaulted Amount. In the event that the Administrative Agent shall so apply any such amount to the payment of any such Defaulted Amount on any date, the amount so applied by the Administrative Agent shall constitute for all purposes of this Agreement and the other than Defaulting Banks in respect Loan Documents payment, to such extent, of such fees);Defaulted Amount on such date. Any such amount so applied by the Administrative Agent shall be retained by the Administrative Agent or distributed by the Administrative Agent to such other Banks, ratably in accordance with the respective portions of such Defaulted Amounts payable at such time to the Administrative Agent and such other Banks and, if the amount of such payment made by such Account Party shall at such time be insufficient to pay all Defaulted Amounts owing at such time to the Administrative Agent, such other Agents and such other Banks, in the following order of priority:
(i) first, to the Agents for any Defaulted Amounts then owing to the Agents;
(ii) second, to the Issuing Bank for any amount then due and payable to it, in its capacity as such, by such Defaulting Bank, ratably in accordance with such amounts then due and payable to the Issuing Bank; and
(iii) third, to any other Banks for any Defaulted Amounts then owing to such other Banks, ratably in accordance with such respective Defaulted Amounts then owing to such other Banks. Any portion of such amount paid by the Borrowers or otherwise received by the Agent such Account Party for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank remaining, after giving effect to the amount applied by the Administrative Agent pursuant to this subsection (whether on a), shall be applied by the Administrative Agent as specified in subsection (b) of this Section 2.11.
(b) In the event that, at any one time, (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall not owe a Defaulted Amount and (iii) any Account Party, any Agent or other Bank shall be required to pay or distribute any amount hereunder or under any other Loan Document to or for the account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead then such Account Party or such Agent or such other Bank shall pay such amount to the Administrative Agent to be retained held by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by applicable law, in escrow and the Administrative Agent shall, to the making fullest extent permitted by applicable law, hold in escrow such amount otherwise held by it. Any funds held by the Administrative Agent in escrow under this subsection (b) shall be deposited by the Administrative Agent in an account with Wachovia in the name and under the control of payments the Administrative Agent, but subject to the provisions of this subsection (b). The terms applicable to such account, including the rate of interest payable with respect to the credit balance of such account from time to time, shall be Wachovia's standard terms applicable to escrow accounts maintained with it. Any interest credited to such account from time to time shall be held by the Administrative Agent in escrow under, and applied by the Administrative Agent from time to time in accordance with the provisions of, this subsection (b). The Administrative Agent shall, to the fullest extent permitted by applicable law, apply all funds so held in escrow from time to time to the extent necessary to make any Advances required to be made by such Defaulting Bank and to pay any amount payable by such Defaulting Bank hereunder and under the other Loan Documents to the Administrative Agent or any other Bank, as and when such Advances or amounts are required to be made or paid and, if the amount so held in escrow shall at any time be insufficient to make and pay all such Advances and amounts required to be made or paid at such time, in the following order of priority: first :
(i) first, to the payment of Agents for any amounts owing then due and payable by such Defaulting Bank to the Agent under this AgreementAgents hereunder;
(ii) second, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest Issuing Bank for any amount then due and payable to themit, third to the payment of fees then due and payable to the Non-in its capacity as such, by such Defaulting Banks hereunderBank, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-such Issuing Bank; and
(iii) third, to any other Banks for any amount then due and payable by such Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers Bank to such other Banks hereunder, ratably in accordance with such respective amounts then due and payable to pay amounts such other Banks. In the event that any Bank that is a Defaulting Bank shall, at any time, cease to be a Defaulting Bank, any funds held by the Administrative Agent in escrow at such time with respect to such Bank shall be distributed by the Administrative Agent to such Bank and applied by such Bank to the Obligations owing to such Bank at such time under this Agreement to and the other Loan Documents ratably in accordance with the respective amounts of such Defaulting Bank or as a court of competent jurisdiction may otherwise directObligations outstanding at such time.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of rights and remedies against a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or Section 2.11 are in addition to other amounts), provided rights and remedies that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting BankDefaulted Amount.
Appears in 2 contracts
Sources: Reimbursement Agreement (Ace LTD), Reimbursement Agreement (Ace LTD)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:;
(a) Such Ticking Fees shall cease to accrue on the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees)2.06;
(ib) The Commitments and Loans of such Defaulting Bank shall not be included in determining whether all Banks or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 11.04); provided that any waiver, amendment or modification (x) extending the term of the Commitment of, reducing amounts owed to such Defaulting Bank or extending the final maturity of the loans of such Defaulting Bank (other than pursuant to Section 2.01(b)) or (y) requiring the consent of all Banks or each affected Bank which affects such Defaulting Bank differently than other affected Banks shall, in each case, require the consent of such Defaulting Bank;
(c) [Reserved].
(d) [Reserved].
(e) Any amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank hereunder (whether on account of feesprincipal, indemnity payments interest, fees or other amounts not constituting principal or interestotherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 4.07(b) will not be paid or but excluding Section 5.07) shall, in lieu of being distributed to such Defaulting Bank, but will instead be retained by the Administrative Agent in a segregated non-interest bearing account until (and, subject to Section 2.18(d)) the termination any applicable requirements of the Commitments and payment in full of all obligations of the Borrowers hereunder and will law, be applied at such time or times as may be determined by the AgentAdministrative Agent (i) first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, (ii) second, to the funding of any Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, (iii) third, if so determined by the Administrative Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any Loans under this Agreement, second (iv) fourth, to the payment of post-default interest and any amounts then current interest due and payable owing to the Non-Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank against such Defaulting Banks, ratably among them in accordance with the amounts Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement, third (v) fifth, to the payment of fees any amounts then due and payable owing to the Non-Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting Banks hereunder, ratably among them in accordance with the amounts Bank as a result of such fees then due and payable to them, fourth to the ratable payment Defaulting Bank’s breach of other amounts then due and payable to the Non-Defaulting Banksits obligations under this Agreement, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder(vi) sixth, to pay amounts owing under this Agreement to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof)jurisdiction; provided, and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)this clause (vi), that if such Bank willpayment is a prepayment of the principal amount of any Loans, such payment shall be applied solely to prepay the Loans of all non-Defaulting Banks pro rata prior to being applied to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release prepayment of any claim of Loans, or reimbursement obligations owed to, any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 2 contracts
Sources: 3 Year Term Loan Credit Agreement (Motorola Solutions, Inc.), 364 Day Term Loan Credit Agreement (Motorola Solutions, Inc.)
Defaulting Banks. Notwithstanding (a) If any provision Letters of this Agreement to Credit are outstanding at the contrary, if any time a Bank becomes a Defaulting Bank, then and the following provisions shall apply for Commitments have not been terminated in accordance with Section 8.01, then:
(i) so long as no Default has occurred and is continuing, all or any part of the participations in outstanding Letters of Credit shall be reallocated among the Banks that are Non-Defaulting Banks in accordance with their respective Applicable Percentages (disregarding any Defaulting Bank’s Commitment) but only to the extent that the sum of (A) the aggregate principal amount of all Advances made by the Non-Defaulting Banks (in their capacity as Banks) and outstanding at such time, plus (B) the Non-Defaulting Banks’ aggregate LC Exposures, plus (C) such Defaulting Bank’s LC Exposure, does not exceed the total of all Non-Defaulting Banks’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by any Issuing Bank, cash collateralize such Defaulting Bank’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) by paying cash collateral to such Issuing Bank; provided that, so long as no Default is continuing, such cash collateral shall be released promptly upon the earliest of (A) the reallocation of the LC Exposure of the Defaulting Bank to Non-Defaulting Banks in accordance with clause (i) above, (B) a reduction in the outstanding amount available to be drawn under all outstanding Letters of Credit to zero, (C) the termination of the Defaulting Bank status of the applicable Bank, (D) such Issuing Bank’s good faith determination that there exists excess cash collateral (in which case, an amount equal to such excess cash collateral shall be released) or (E) the posting of cash collateral for the amount of a Defaulting Bank as contemplated by Section 2.07(g). In the event any Letter of Credit or a portion thereof is collateralized, no fees shall be payable by the Company on the collateralized amount of such Letter of Credit or a portion thereof;
(iii) to the extent the Applicable Percentages of Letters of Credit of the Non-Defaulting Banks are reallocated pursuant to this Section 2.07(a), then the fees payable to the Banks pursuant to Section 4.01(b)(i) shall be adjusted in accordance with the Non-Defaulting Banks’ Applicable Percentages of Letters of Credit as reallocated; or
(iv) to the extent any Defaulting Bank’s Applicable Percentage of Letters of Credit is neither cash collateralized nor reallocated pursuant to Section 2.07(a), then, without prejudice to any rights or remedies of any Issuing Bank or any Bank hereunder, all letter of credit fees payable under Section 4.01(b)(i) with respect to such Defaulting Bank’s Applicable Percentage of Letters of Credit that has not been reallocated or collateralized shall be payable to the applicable Issuing Bank until such Defaulting Bank’s Applicable Percentage of Letters of Credit has been fully cash collateralized and/or reallocated.
(b) So long as any Bank is a Defaulting Bank:
(a) Such Defaulting , no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to 100% covered by the rights Commitments of the Non-Defaulting Banks other than and/or cash collateral will be provided by the Company in accordance with Section 2.07(a) or provided in accordance with Section 2.07(g), and participating interests in any such newly issued, amended or increased Letter of Credit shall be allocated among Non-Defaulting Banks in respect of such feesa manner consistent with Section 2.07(a)(i) (and Defaulting Banks shall not participate therein);.
(ic) Any amount paid No Commitment of any Bank shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.07, performance by the Borrowers Company of its obligations shall not be excused or otherwise received by modified as a result of the Agent for the account operation of this Section 2.07. The rights and remedies against a Defaulting Bank under this Agreement Section 2.07 are in addition to any other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesrights and remedies which the Company, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Issuing Bank may have against such Defaulting Bank; and.
(d) In [Reserved].
(e) [Reserved].
(f) If the event that Company, the Borrowers Administrative Agent and the Agent each Issuing Bank agree in writing in their discretion reasonable determination that a Defaulting Bank is should no longer be deemed to be a Defaulting Bank, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)cash collateral), such that Bank will, to the extent applicable, purchase purchase, at par such par, that portion of outstanding Advances of the other Banks and/or make or take such other adjustments actions as the Administrative Agent may determine to be necessary to cause the Revolving Advances and funded and unfunded participations in Letters of Credit Obligations of the Banks to be held on a pro rata basis by the Banks in accordance with their respective CommitmentsApplicable Percentages (without giving effect to Section 2.07(a)), whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Company while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
(g) Notwithstanding anything to the contrary contained in this Agreement, any payment of principal, interest, commitment fees, Letter of Credit commissions or other amounts received by the Administrative Agent for the account of any Defaulting Bank under this Agreement (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to any Issuing Bank hereunder; third, as the Company may request (so long as no Default exists), to the funding of any Advance in respect of which that Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, as the Company may request, to be held in a cash collateral account to cash collateralize such Defaulting Bank’s participations in Letters of Credit that are then outstanding; fifth, if so determined by the Administrative Agent and the Company, to be held in a cash collateral account and released in order to satisfy obligations of such Defaulting Bank to fund Advances under this Agreement; sixth, if so determined by the Administrative Agent and the Company, to be held in a cash collateral account to cash collateralize such Defaulting Bank’s participations in Letters of Credit, seventh, to the payment of any amounts owing to the Banks or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank or Issuing Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; eighth, so long as no Default exists, to the payment of any amounts owing to the Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; and ninth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Advance in respect of which such Defaulting Bank has not fully funded its appropriate share, and (y) such Advances were made or the related Letters of Credit were issued at a time when the applicable conditions set forth in Article V were satisfied or waived, such payment shall be applied solely to pay the Advances of all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Advances of such Defaulting Bank; and provided further that any amounts held as cash collateral for funding obligations of a Defaulting Bank shall be returned to such Defaulting Bank upon the termination of this Agreement and the satisfaction of such Defaulting Bank’s obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section 2.07 shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
(h) The Commitment, Revolving Credit Exposure and LC Exposure of any Defaulting Bank shall not be included in determining whether the Majority Banks or any other requisite Banks have taken or may take any action hereunder or under any Note (including any consent to any amendment, waiver or other modification pursuant to Section 10.01) except as set forth in Section 10.01.
Appears in 2 contracts
Sources: Revolving Credit and Letter of Credit Agreement (Cigna Group), Revolving Credit and Letter of Credit Agreement (Cigna Group)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such facility fees shall cease to accrue on the Revolving Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees2.09(a);
(ib) Any amount paid by the Borrowers any payment of principal, interest, fees or otherwise other amounts received by the Administrative Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesvoluntary or mandatory, indemnity payments at maturity, or other amounts not constituting principal otherwise) or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained received by the Administrative Agent in from a segregated non-interest bearing account until (subject Defaulting Bank pursuant to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will 9.04 shall be applied at such time or times as may be determined by the AgentAdministrative Agent as follows: first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to any Issuing Bank or Swingline Bank hereunder; third, to cash collateralize LC Exposure with respect to such Defaulting Bank in accordance with this Section; fourth, as the Borrower may request (so long as no Event of Default exists), to the funding of any Loan 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; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Bank’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize future LC Exposure with respect to such Defaulting Bank with respect to future Letters of Credit issued under this Agreement, second in accordance with this Section; sixth, to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Defaulting Banks, ratably among them in accordance with the amounts Issuing Banks or Swingline Bank as a result of any judgment of a court of competent jurisdiction obtained by any Bank, the Issuing Banks or Swingline Bank against such Defaulting Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement or under any other Loan Document; seventh, third to the payment of fees then due and payable any amounts owing to the Non-Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Banks hereunder, ratably among them in accordance with the amounts Bank as a result of such fees then due and payable to them, fourth to the ratable payment Defaulting Bank’s breach of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all its obligations of the Borrowers hereunder, to pay amounts owing under this Agreement or under any other Loan Document; and eighth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursements in respect of which such Defaulting Bank has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Bank until such time as all Loans and funded and unfunded participations in the Borrower’s obligations corresponding to such Defaulting Bank’s LC Exposure and Swingline Loans are held by the Banks pro rata in accordance with the Commitments without giving effect to clause (d) below. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto;
(c) the Commitment, the outstanding Term Loans and Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether the Required Banks have taken or may otherwise direct.take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that any amendment, waiver or other modification requiring the consent of all Bank or each Bank affected thereby which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank, and provided, further, that any waiver, amendment or modification requiring the consent of all Banks or each affected Bank made pursuant to clause (i), (ii) or (iii) of the first proviso to Section 9.02 (but, in respect of such clauses (ii) and (iii), only to the extent relating to principal or interest) shall also require the consent of any such Bank which has become a Defaulting Bank;
(d) if any Swingline Exposure or LC Exposure exists at the time a Revolving Bank becomes a Defaulting Bank then:
(i) all or any part of such Swingline Exposure and LC Exposure of such Defaulting Bank (other than, in the case of a Defaulting Bank that is a Swingline Bank, the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Banks in accordance with their respective Applicable Percentages but only to the extent that such reallocation does not, as to any non-Defaulting Bank, cause such non-Defaulting Bank’s Revolving Credit Exposure to exceed its Revolving Commitment;
(ii) Any amount paid if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Borrowers Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the account benefit of a the Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Bank’s LC Exposure, in each case, after giving effect to any partial reallocation pursuant to clause (i) above in accordance with the procedures set forth in Section 2.17(b)(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Bank’s LC Exposure pursuant to this clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Bank representing principal pursuant to Section 2.09(b) with respect to such Defaulting Bank’s LC Exposure during the period such Defaulting Bank’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Banks is reallocated pursuant to clause (i) above, then the fees payable to the Revolving Banks pursuant to Section 2.09(a) and Section 2.09(b) shall be adjusted in accordance with such non-Defaulting Banks’ Applicable Percentages; and
(v) if all or interest any portion of such Defaulting Bank’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Issuing Bank or any Revolving Bank hereunder, all facility fees that otherwise would have been payable to such Defaulting Bank shall be paid (solely with respect to the portion of such Defaulting Bank’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.09 with respect to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice ’s LC Exposure shall be payable to the Agent (which will promptly notify the Issuing Banks thereof), and in until such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting BankLC Exposure is reallocated and/or cash collateralized; and
(de) so long as such Revolving Bank is a Defaulting Bank, no Swingline Bank shall be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Bank’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Borrower in accordance with this Section, and Swingline Exposure related to any newly made Swingline Loan or LC Exposure related to any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with this Section (and such Defaulting Bank shall not participate therein); and
(i) 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 or (ii) any Swingline Bank or Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, no Swingline Bank shall be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Swingline Bank or the Issuing Banks, as the case may be, shall have entered into arrangements with the Borrower or such Bank, satisfactory to such Swingline Bank or Issuing Bank, as the case may be, to defease any risk to it in respect of such Bank hereunder. In the event that each of the Borrowers Administrative Agent, the Borrower, each Swingline Bank and the Agent agree in writing in their discretion each Issuing Bank agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify the parties hereto, whereupon as Swingline Exposure and LC Exposure of the effective Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Loans of the other Banks and/or make such (other adjustments than Swingline Loans) as the Administrative Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Loans in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing)its Applicable 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 such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s that Bank having been a Defaulting Bank.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 4.1;
(without prejudice b) the Credit Exposure 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 12.4); provided, that this clause (b) shall not apply to the rights vote of a Defaulting Bank in the Banks case of an amendment, waiver or other than Defaulting Banks in respect modification requiring the consent of such fees)Bank or each Bank affected thereby;
(c) if any Swingline Advances are outstanding at the time such Bank becomes a Defaulting Bank then:
(i) Any amount paid by the Borrowers all or otherwise received by the Agent for the account any part of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead ’s participation in Swingline Advances shall be retained by reallocated among the Agent in a segregated non-interest bearing account until (subject Defaulting Banks in accordance with their respective Percentages but only to Section 2.18(d)) the termination of extent the Commitments and payment in full sum of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Nonnon-Defaulting Banks, ratably among them in accordance with ’ Committed Outstandings plus such Defaulting Bank’s Percentage of Swingline Advances does not exceed the amounts total of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Nonall non-Defaulting Banks’ Commitments and, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement giving effect to such reallocation, the Committed Outstandings of each non-Defaulting Bank or as a court plus such non-Defaulting Bank’s Percentage of competent jurisdiction may otherwise direct.
(ii) Any amount paid by Swingline Advances does not exceed the Borrowers for the account Commitment of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Nonnon-Defaulting Bank;
(cii) The Borrowers may terminate if the unused amount of reallocation described in clause (i) above cannot, or can only partially, be effected, the Commitment of a Defaulting Bank upon not less than three (3) Borrower shall within one Business Days’ prior Day following notice by the Agent prepay such Swingline Advances to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will extent not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bankso reallocated; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a so long as such Bank is no longer a Defaulting Bank, the Agent Swingline Bank shall not be required to fund any Swingline Advance unless it is satisfied that the related exposure will so notify be 100% covered by the parties hereto, whereupon as Commitments of the effective date specified non-Defaulting Banks, and participating interests in any newly made Swingline Advance shall be allocated among non-Defaulting Banks in a manner consistent with Section 6.7(c)(i) (and such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis shall not participate therein). Subject to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected partiesSection 12.18, no change reallocation hereunder from Defaulting Bank to Non-Defaulting Bank will 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 If (i) a Bankruptcy Event with respect to a parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, the Swingline Bank shall not be required to fund any Swingline Advance unless the Swingline Bank shall have entered into arrangements with the Borrower or such Bank, satisfactory to the Swingline Bank to defease any risk to it in respect of such Bank hereunder. In the event that the Agent, the Borrower and the Swingline Bank each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the participations of the Banks in Swingline Advances shall be readjusted to reflect the inclusion of such Bank’s having been a Defaulting BankCommitment and on such date such Bank shall purchase at par such of the Advances of the other Banks (other than Bid Loans and Swingline Advances) as the Agent shall determine may be necessary in order for such Bank to hold such Advances in accordance with its Percentage.
Appears in 1 contract
Sources: Five Year Credit Agreement (3m Co)
Defaulting Banks. Notwithstanding (a) In the event that, at any provision one time, (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Amount to any Agent or any of this Agreement the other Banks and (iii) any Account Party shall make any payment hereunder or under any other Loan Document to the contrary, if any Bank becomes a Administrative Agent for the account of such Defaulting Bank, then the following provisions shall Administrative Agent may, on its behalf or on behalf of such other Banks and to the fullest extent permitted by applicable law, apply at such time the amount so paid by such Account Party to or for so long as the account of such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights payment of each such Defaulted Amount to the Banks extent required to pay such Defaulted Amount. In the event that the Administrative Agent shall so apply any such amount to the payment of any such Defaulted Amount on any date, the amount so applied by the Administrative Agent shall constitute for all purposes of this Agreement and the other than Defaulting Banks in respect Loan Documents payment, to such extent, of such fees);Defaulted Amount on such date. Any such amount so applied by the Administrative Agent shall be retained by the Administrative Agent or distributed by the Administrative Agent to such other Banks, ratably in accordance with the respective portions of such Defaulted Amounts payable at such time to the Administrative Agent and such other Banks and, if the amount of such payment made by such Account Party shall at such time be insufficient to pay all Defaulted Amounts owing at such time to the Administrative Agent, such other Agents and such other Banks, in the following order of priority:
(i) first, to the Agents for any Defaulted Amounts then owing to the Agents;
(ii) second, to the Issuing Bank for any amount then due and payable to it, in its capacity as such, by such Defaulting Bank, ratably in accordance with such amounts then due and payable to the Issuing Bank; and
(iii) third, to any other Banks for any Defaulted Amounts then owing to such other Banks, ratably in accordance with such respective Defaulted Amounts then owing to such other Banks. Any portion of such amount paid by the Borrowers or otherwise received by the Agent such Account Party for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank remaining, after giving effect to the amount applied by the Administrative Agent pursuant to this subsection (whether on a), shall be applied by the Administrative Agent as specified in subsection (b) of this Section 2.11.
(b) In the event that, at any one time, (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall not owe a Defaulted Amount and (iii) any Account Party, any Agent or other Bank shall be required to pay or distribute any amount hereunder or under any other Loan Document to or for the account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead then such Account Party or such Agent or such other Bank shall pay such amount to the Administrative Agent to be retained held by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by applicable law, in escrow or the Administrative Agent shall, to the making fullest extent permitted by applicable law, hold in escrow such amount otherwise held by it. Any funds held by the Administrative Agent in escrow under this subsection (b) shall be deposited by the Administrative Agent in an account with First Union in the name and under the control of payments the Administrative Agent, but subject to the provisions of this subsection (b). The terms applicable to such account, including the rate of interest payable with respect to the credit balance of such account from time to time, shall be First Union's standard terms applicable to escrow accounts maintained with it. Any interest credited to such account from time to time shall be held by the Administrative Agent in escrow under, and applied by the Administrative Agent from time to time in accordance with the provisions of, this subsection (b). The Administrative Agent shall, to the fullest extent permitted by applicable law, apply all funds so held in escrow from time to time to the extent necessary to make any Advances required to be made by such Defaulting Bank and to pay any amount payable by such Defaulting Bank hereunder and under the other Loan Documents to the Administrative Agent or any other Bank, as and when such Advances or amounts are required to be made or paid and, if the amount so held in escrow shall at any time be insufficient to make and pay all such Advances and amounts required to be made or paid at such time, in the following order of priority: first :
(i) first, to the payment of Agents for any amounts owing then due and payable by such Defaulting Bank to the Agent under this AgreementAgents hereunder;
(ii) second, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest Issuing Bank for any amount then due and payable to themit, third to the payment of fees then due and payable to the Non-in its capacity as such, by such Defaulting Banks hereunderBank, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-such Issuing Bank; and
(iii) third, to any other Banks for any amount then due and payable by such Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers Bank to such other Banks hereunder, ratably in accordance with such respective amounts then due and payable to pay amounts such other Banks. In the event that any Bank that is a Defaulting Bank shall, at any time, cease to be a Defaulting Bank, any funds held by the Administrative Agent in escrow at such time with respect to such Bank shall be distributed by the Administrative Agent to such Bank and applied by such Bank to the obligations owing to such Bank at such time under this Agreement to and the other Loan Documents ratably in accordance with the respective amounts of such Defaulting Bank or as a court of competent jurisdiction may otherwise directobligations outstanding at such time.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of rights and remedies against a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or Section 2.11 are in addition to other amounts), provided rights and remedies that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting BankDefaulted Amount.
Appears in 1 contract
Sources: Reimbursement Agreement (Ace LTD)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any undrawn commitment fees accruing during such period pursuant to Section 2.04 2.06(a) (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(cb) The Borrowers Borrower may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any the Borrower, the Agent or any Bank may have against such Defaulting Bank;
(c) The Borrower may, upon notice to the Agent and such Defaulting Bank, require such Defaulting Bank to assign at par all of its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations; provided that the Defaulting Bank and the assignee(s) shall execute and deliver to the Agent an Assignment and Acceptance and such other documents, agreements and instruments as the Agent may reasonably require in order to effectuate the assumption by such replacement bank(s) of the Defaulting Bank’s obligations hereunder; and
(d) In the event that the Borrowers Borrower and the Agent agree in writing in their discretion that a Bank that is a Defaulting Bank should no longer be deemed to be a Defaulting Bank, the Agent will so notify the parties hereto, whereupon whereupon, as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b))therein, such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Borrower while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 1 contract
Defaulting Banks. Notwithstanding (a) If any provision Letters of this Agreement to Credit are outstanding at the contrary, if any time a Bank becomes a Defaulting Bank, then and the following provisions shall apply for Commitments have not been terminated in accordance with Section 8.01, then: (i) so long as such Bank no Default has occurred and is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to continuing, all or any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights part of the participations in outstanding Letters of Credit shall be reallocated among the Banks other than that are Non- Defaulting Banks in respect accordance with their respective Applicable Percentages (disregarding any Defaulting Bank’s Commitment) but only to the extent that the sum of such fees);
(i) Any the aggregate principal amount paid of all Advances made by the Borrowers or otherwise received by the Agent for the account of a Non-Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to Banks (in their capacity as Banks) and outstanding at such Defaulting Bank (whether on account of feestime, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to plus the Non-Defaulting Banks’ aggregate LC Exposures, ratably among them in accordance with plus such Defaulting Bank’s LC Exposure, does not exceed the amounts total of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the all Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
’ Commitments; (ii) Any amount paid by if the Borrowers for the account of a Defaulting Bank representing principal reallocation described in clause (i) above cannot, or interest payable to such Defaulting Bank shall can only partially, be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrowereffected, the Agent or Company shall within one Business Day following notice by any Bank may have against Issuing Bank, cash collateralize such Defaulting Bank’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) by paying cash collateral to such Issuing Bank; and
(d) In provided that, so long as no Default is continuing, such cash collateral shall be released promptly upon the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as earliest of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances reallocation of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations LC Exposure of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Banks in accordance with clause (i) above, a reduction in the outstanding amount available to be drawn under all outstanding Letters of Credit to zero, the termination of the Defaulting Bank will constitute status of the applicable Bank, such Issuing Bank’s good faith determination that there exists excess cash collateral (in which case, an amount equal to such excess cash collateral shall be released) or the posting of cash collateral for the amount of a waiver Defaulting Bank as contemplated by Section 2.07(g). In the event any Letter of Credit or release a portion thereof is collateralized, no fees shall be payable by the Company on the collateralized amount of such Letter of Credit or a portion thereof; (iii) to the extent the Applicable Percentages of Letters of Credit of the Non- Defaulting Banks are reallocated pursuant to this Section 2.07(a), then the fees payable to the Banks pursuant to Section 4.01(b) shall be adjusted in accordance with the Non-Defaulting Banks’ Applicable Percentages of Letters of Credit as reallocated; or (iv) to the extent any Defaulting Bank’s Applicable Percentage of Letters of Credit is neither cash collateralized nor reallocated pursuant to Section 2.07(a), then, without prejudice to any rights or remedies of any claim Issuing Bank or any Bank hereunder, all letter of any party hereunder arising from credit fees payable under Section 4.01(b) with respect to such Defaulting Bank’s having Applicable Percentage of Letters of Credit that has not been a reallocated or collateralized shall be payable to the applicable Issuing Bank until such Defaulting Bank’s Applicable Percentage of Letters of Credit has been fully cash collateralized and/or reallocated.
Appears in 1 contract
Sources: Revolving Credit and Letter of Credit Agreement (Cigna Group)
Defaulting Banks. Notwithstanding any provision of this Agreement (i) Anything herein to the contrarycontrary notwithstanding, if any Bank becomes during such period as a Defaulting Bank, then the following provisions shall apply for so long as such Participating Bank is a Defaulting Bank:
(a) Such , such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 Sections 3(b) and 3(e) hereof (without prejudice to the rights of the Banks other than Non-Defaulting Banks in respect of such fees), provided that such fees will instead accrue for the benefit of and be payable to the Funding Banks, as applicable (and the pro rata payment provisions of Section 6(d) hereof will automatically be deemed adjusted to reflect the provisions of this Section).
(ii) If any Participating Bank becomes, and during the period it remains, a Defaulting Bank, the following provisions shall apply with respect to the participation interest of such Defaulting Bank in the Letters of Credit and its rights and obligations hereunder:
(A) the Company shall, not later than three (3) Business Days after demand by the Administrating Bank (at the direction of a Funding Bank), (1) Cash Collateralize the obligations of the Company to the Funding Banks in respect of such Defaulting Bank’s participation interest in the Letters of Credit in an amount at least equal to such Defaulting Bank’s Participation Percentage of the Aggregate Maximum Credit Amount, or (2) make other arrangements satisfactory to the Administrating Bank and to the Funding Banks, in their sole discretion, to protect them against the risk of non-payment by such Defaulting Bank;
(iB) Any if such Participating Bank has failed to pay to any Funding Bank any amount required by Section 5(a) hereof within two (2) Business Days following the date on which such payment was due from such Participating Bank, the Company shall, not later than one (1) Business Day after demand by the Administrating Bank (at the direction of such Funding Bank), reimburse such Funding Bank in full for such amount; and
(C) any amount paid by the Borrowers Company or otherwise received by the Agent Administrating Bank for the account of a such Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of principal, interest, fees, indemnity payments or other amounts not constituting principal or interestamounts) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent Administrating Bank in a segregated non-interest bearing account until (subject to Section 2.18(d)2(m)(iv) hereof) the termination of the Commitments Letters of Credit and payment in full of all obligations of the Borrowers Company hereunder and will be applied by the AgentAdministrating Bank, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first first, to the payment of any amounts owing by such Defaulting Bank to the Agent Administrating Bank under this Agreement, second second, to the payment of any amounts owing by such Defaulting Bank to the Funding Banks (pro rata as to the respective amounts owing to each of them) under this Agreement, third, to the payment of post-default interest and then current interest due and payable to the Non-Participating Banks hereunder other than Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third fourth, to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth fifth, to pay principal and unreimbursed amounts then due and payable under the Letters of Credit to the Non-Defaulting Banks hereunder ratably in accordance with the amounts thereof then due and payable to them, sixth, to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth seventh, after the termination of the Commitments Letters of Credit and payment in full of all obligations of the Borrowers Company hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(iiiii) Any amount paid by If any Participating Bank becomes, and during the Borrowers for the account of period it remains, a Defaulting Bank representing principal or interest payable a Potential Defaulting Bank, any Funding Bank may, by notice to the Company and such Defaulting Bank shall be paid or Potential Defaulting Bank through the Administrating Bank, require the Company to Cash Collateralize the obligations of the Company to such Funding Bank in respect of the Letter(s) of Credit issued by such Funding Bank, in an amount at least equal to such Participating Bank’s Participation Percentage of the Maximum Credit Amount of such Letter(s) of Credit, or to make other arrangements satisfactory to the Administrating Bank and to such Funding Bank in their sole discretion to protect them against the risk of non-payment by such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-or Potential Defaulting Bank;.
(civ) The Borrowers may terminate If the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any BorrowerCompany, the Agent or any Administrating Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent Funding Banks agree in writing in their discretion that a Participating Bank is no longer a Defaulting Bank or a Potential Defaulting Bank, as the Agent case may be, the Administrating Bank will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)2(m)(ii)(C) hereof), such Participating Bank will, to the extent applicable, purchase at par such portion of the outstanding Advances of the other Participating Banks and/or make such other adjustments as the Agent Administrating Bank may determine to be necessary to cause the Revolving Credit Obligations outstanding principal amount of any Advances held by the Participating Banks to be on a pro rata basis in accordance with their respective CommitmentsParticipation Percentages, whereupon such Participating Bank will cease to be a Defaulting Bank or Potential Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate such outstanding Advances held by each Participating Bank will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Company while such Participating Bank was a Defaulting Bank or a Potential Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank or Potential Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Participating Bank’s having been a Defaulting Bank or Potential Defaulting Bank.”
Appears in 1 contract
Sources: Letter of Credit and Reimbursement Agreement (Entergy Texas, Inc.)
Defaulting Banks. Notwithstanding (a) In the event that, at any provision one time, (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Amount to any Agent or any of this Agreement the other Banks and (iii) any Account Party shall make any payment hereunder or under any other Loan Document to the contrary, if any Bank becomes a Administrative Agent for the account of such Defaulting Bank, then the following provisions shall Administrative Agent may, on its behalf or on behalf of such other Banks and to the fullest extent permitted by applicable law, apply at such time the amount so paid by such Account Party to or for so long as the account of such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights payment of each such Defaulted Amount to the Banks extent required to pay such Defaulted Amount. In the event that the Administrative Agent shall so apply any such amount to the payment of any such Defaulted Amount on any date, the amount so applied by the Administrative Agent shall constitute for all purposes of this Agreement and the other than Defaulting Banks in respect Loan Documents payment, to such extent, of such fees);Defaulted Amount on such date. Any such amount so applied by the Administrative Agent shall be retained by the Administrative Agent or distributed by the Administrative Agent to such other Banks, ratably in accordance with the respective portions of such Defaulted Amounts payable at such time to the Administrative Agent and such other Banks and, if the amount of such payment made by such Account Party shall at such time be insufficient to pay all Defaulted Amounts owing at such time to the Administrative Agent, such other Agents and such other Banks, in the following order of priority:
(i) first, to the Agents for any Defaulted Amounts then owing to the Agents;
(ii) second, to the Issuing Banks for any amount then due and payable to them, in their capacity as such, by such Defaulting Bank, ratably in accordance with such amounts then due and payable to the Issuing Banks; and
(iii) third, to any other Banks for any Defaulted Amounts then owing to such other Banks, ratably in accordance with such respective Defaulted Amounts then owing to such other Banks. Any portion of such amount paid by the Borrowers or otherwise received by the Agent such Account Party for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank remaining, after giving effect to the amount applied by the Administrative Agent pursuant to this Section 2.11(a), shall be applied by the Administrative Agent as specified in Section 2.11(b).
(whether on b) In the event that, at any one time, (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall not owe a Defaulted Amount and (iii) any Account Party, any Agent or other Bank shall be required to pay or distribute any amount hereunder or under any other Loan Document to or for the account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead then such Account Party or such Agent or such other Bank shall pay such amount to the Administrative Agent to be retained held by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by applicable law, in escrow and the Administrative Agent shall, to the making fullest extent permitted by applicable law, hold in escrow such amount otherwise held by it. Any funds held by the Administrative Agent in escrow under this Section 2.11(b) shall be deposited by the Administrative Agent in an account with Wachovia in the name and under the control of payments the Administrative Agent, but subject to the provisions of this Section 2.11(b). The terms applicable to such account, including the rate of interest payable with respect to the credit balance of such account from time to time, shall be Wachovia’s standard terms applicable to escrow accounts maintained with it. Any interest credited to such account from time to time shall be held by the Administrative Agent in escrow under, and applied by the Administrative Agent from time to time in accordance with the provisions of, this Section 2.11(b). The Administrative Agent shall, to the fullest extent permitted by applicable law, apply all funds so held in escrow from time to time to the extent necessary to make any Advances required to be made by such Defaulting Bank and to pay any amount payable by such Defaulting Bank hereunder and under the other Loan Documents to the Administrative Agent or any other Bank, as and when such Advances or amounts are required to be made or paid and, if the amount so held in escrow shall at any time be insufficient to make and pay all such Advances and amounts required to be made or paid at such time, in the following order of priority: first :
(i) first, to the payment of Agents for any amounts owing then due and payable by such Defaulting Bank to the Agent under this AgreementAgents hereunder;
(ii) second, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest Issuing Banks for any amount then due and payable to them, third to the payment of fees then due and payable to the Non-in their capacity as such, by such Defaulting Banks hereunderBank, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-such Issuing Banks; and
(iii) third, to any other Banks for any amount then due and payable by such Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers Bank to such other Banks hereunder, ratably in accordance with such respective amounts then due and payable to pay amounts such other Banks. In the event that any Bank that is a Defaulting Bank shall, at any time, cease to be a Defaulting Bank, any funds held by the Administrative Agent in escrow at such time with respect to such Bank shall be distributed by the Administrative Agent to such Bank and applied by such Bank to the Obligations owing to such Bank at such time under this Agreement to and the other Loan Documents ratably in accordance with the respective amounts of such Defaulting Bank or as a court of competent jurisdiction may otherwise directObligations outstanding at such time.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of rights and remedies against a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or Section 2.11 are in addition to other amounts), provided rights and remedies that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting BankDefaulted Amount.
Appears in 1 contract
Sources: Reimbursement Agreement (Ace LTD)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid facility fees shall cease to accrue, or to be payable by the Borrowers or otherwise received by Borrower, on the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount unfunded portion of the Commitment of a such Defaulting Bank upon not less than three (3pursuant to Section 2.09(a) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement or otherwise;
(whether ii) Letter of Credit Fees shall cease to accrue, or to be payable by the Borrower, on the Pro Rata Share of a Letter of Credit of such Defaulting Bank pursuant to Section 2.09(c) for the account of principalsuch Defaulting Bank or otherwise;
(iii) the Commitment or Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks or the Required Banks have taken or may take any action hereunder (including any consent to any amendment, interest, fees, indemnity waiver or other amountsmodification pursuant to Section 9.05); provided, provided however, that such termination will this clause (iii) shall not be deemed (subject to be Section 9.05) apply to the vote of a Defaulting Bank in the case of an amendment, waiver or release other modification specifically requiring the consent of any claim any Borrowersuch Bank or each Bank affected thereby (and in circumstances where the consent of “all Banks” is required, the Agent or any Bank may have against such Defaulting Bank’s vote shall not be included except (A) such Defaulting Bank’s Commitment may not be increased or extended without its consent and (B) the principal amount of, or interest or fees payable on, Loans or L/C Borrowings may not be reduced or excused or the scheduled date of payment may not be postponed as to such Defaulting Bank without such Defaulting Bank’s consent); and
(div) if any L/C Obligations exists at the time such Bank becomes a Defaulting Bank then:
(A) provided that no Default or Event of Default exists, all or any part of such Defaulting Bank’s Pro Rata Share of the Outstanding Amount of all L/C Obligations shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Shares but only to the extent the aggregate principal amount of Revolving Loans of all non-Defaulting Bank’s plus such Defaulting Bank’s Pro Rata Share of the Outstanding Amount of all L/C Obligations do not exceed the total of all non-Defaulting Banks’ Commitments;
(B) if the reallocation described in clause (A) above cannot, or can only partially, be effected, the Borrower shall within one Domestic Business Day following notice by the Administrative Agent Cash Collateralize for the benefit of the Issuing Bank such Defaulting Bank’s Pro Rata Share of the Outstanding Amount of all L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.20(e)(i) for so long as such L/C Obligations are outstanding;
(C) if the Borrower Cash Collateralizes any portion of such Defaulting Bank’s L/C Obligations pursuant to clause (B) above, the Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.09(c) with respect to such L/C Obligations during the period such Defaulting Bank’s L/C Obligations are Cash Collateralized;
(D) if the L/C Obligations of the non-Defaulting Banks are reallocated pursuant to clause (A) above, then the fees payable to the Banks pursuant to Section 2.09(a) and Section 2.09(c) shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; and
(E) if all or any portion of such Defaulting Bank’s L/C Obligations are neither reallocated nor Cash Collateralized pursuant to clause (A) or (B) above, then, without prejudice to any rights or remedies of the Issuing Bank or any other Bank hereunder, all facility fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such L/C Obligations) and letter of credit fees payable under Section 2.09(c) with respect to such Defaulting Bank’s L/C Obligations shall be payable to the Issuing Bank until and to the extent that such L/C Obligations are reallocated and/or Cash Collateralized; and
(b) 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 Defaulting Bank's related exposure and its then outstanding L/C Advance will be 100% covered in accordance with the terms of this Agreement by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Borrower in accordance with Section 2.19(a)(iv), and participating interests in any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.19(a)(iv)(A) (and such Defaulting Bank shall not participate therein). In the event that the Borrowers Administrative Agent, the Borrower, and the Agent agree in writing in their discretion Issuing Bank each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify the parties hereto, whereupon as L/C Obligations of the effective Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Loans of the other Banks and/or make such other adjustments as the Administrative Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Loans in accordance with their respective Commitmentsits Pro Rata Share.
(c) At the Borrower’s option, whereupon the Borrower may elect to terminate the Commitment of any Defaulting Bank upon notice to such Bank will cease to be a Defaulting Bank and will be a Non-the Administrative Agent (irrespective of whether such Defaulting Bank (holds any outstanding Loans) and each such notice shall be effective upon receipt by both the Defaulting Bank and the Administrative Agent; provided that, for the avoidance of doubt, if such Defaulting Bank holds any Loans, and such Loans are not assigned pursuant to Section 2.18 or otherwise, then such Defaulting Bank shall continue to hold such Loans until such time as such Loans are repaid by the Borrower or assigned pursuant to this Agreement. Upon termination of a Bank’s ratable portion Commitment under this Section 2.19, the Borrower shall (x) to the extent applicable after giving effect to Section 2.19(a)(iv) and any Cash Collateral provided by the Defaulting Bank, Cash Collateralize such Defaulting Bank’s Pro Rata Share of the aggregate undrawn amount of all outstanding Advances will automatically Letters of Credit, (y) subject to Section 2.19(a), pay or cause to be adjusted on a prospective basis paid all accrued facility fees or Letter of Credit Fees payable to reflect such Bank and all other amounts due and payable to such Bank hereunder and (z) if such Bank is an Issuing Bank, the foregoing); provided that no adjustments will be made retroactively Borrower shall pay to the Administrative Agent for deposit an amount equal to the available amount of all Letters of Credit issued by such Issuing Bank, and upon such payments, the obligations of such Bank hereunder with respect to fees accrued or payments made by or on behalf of the Borrowers while such Bank was a Defaulting Bank; and providedunused Commitment which have been terminated shall, further, that except to the extent otherwise expressly agreed by the affected partiesprovisions hereof, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bankbe released and discharged.
Appears in 1 contract
Sources: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Defaulting Banks. Notwithstanding any provision (a) If a Bank becomes, and during the period it remains, a Defaulting Bank, the following provisions shall apply:
(i) such Defaulting Bank’s Pro Rata Share of this Agreement the LC Obligations will, subject to the contrarylimitation in the proviso below, if any automatically be reallocated (effective on the day such Bank becomes a Defaulting Bank, then ) among the following provisions shall apply for so long as such Bank is a Non-Defaulting Banks pro rata in accordance with their respective Pro Rata Shares of the Commitment; provided that (A) the sum of each Non-Defaulting Bank:’s aggregate principal amount of Advances and Pro Rata Share of the LC Obligations may not in any event exceed the Pro Rata Share of the Commitment of such Non-Defaulting Bank as in effect at the time of such reallocation and (B) neither such reallocation nor any payment by a Non-Defaulting Bank pursuant thereto will constitute a waiver or release of any claim the Company, any other Borrower, the Administrative Agent, any Issuing Bank, or any other Bank may have against such Defaulting Bank or cause such Defaulting Bank to be a Non-Defaulting Bank;
(aii) Such to the extent that any portion (the “unreallocated portion”) of the Defaulting Bank will Bank’s share of the LC Obligations cannot be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights so reallocated, whether by reason of the Banks other proviso in clause (i) above or otherwise, the Borrowers will, not later than Defaulting Banks three Banking Days after demand by the Administrative Agent (at the direction of an Issuing Bank), (A) Cash Collateralize the obligations of the Borrowers in respect of such fees)LC Obligations in an amount equal to the aggregate amount of the unreallocated portion of such LC Obligations, or (B) make other arrangements satisfactory to the Administrative Agent and each Issuing Bank, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Bank;
(iiii) Any any amount paid by the Borrowers or otherwise received by the Administrative Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of principal, interest, fees, indemnity payments or other amounts not constituting principal or interestamounts) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Administrative Agent in a segregated non-interest bearing account until (subject to Section 2.18(d2.10(c)) the termination of the Commitments Commitment and payment in full of all obligations of the Borrowers hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent under this Agreement, second to the payment of any amounts owing by such Defaulting Bank to an Issuing Bank (pro rata as to the respective amounts owing to each of them) under this Agreement, third to the payment of post-default interest and then current interest due and payable to the Non-Banks hereunder other than Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third fourth to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth fifth to pay principal then due and payable to the Non-Defaulting Banks hereunder ratably in accordance with the amounts thereof then due and payable to them, sixth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth seventh after the termination of the Commitments Commitment and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) . Any amount payments, prepayments or other amounts paid by the Borrowers for the account of or payable to a Defaulting Bank representing principal that are applied (or interest payable held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section 2.10 shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto; and
(iv) so long as such Bank is a Defaulting Bank or a Potential Defaulting Bank, the Issuing Banks shall not be paid required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and such Defaulting Bank in the same amounts and in the same manner as if Bank’s or such Defaulting Bank were a Non-Potential Defaulting Bank;
(c) The Borrowers may terminate ’s Pro Rata Share of the unused amount then outstanding LC Obligations will be 100% covered by the Pro Rata Shares of the Commitment of the Non-Defaulting Banks and/or cash collateral will be provided by the Borrowers in accordance with Section 2.10(a)(ii), and participating interests in any newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Banks in a manner consistent with Section 2.10(a)(i) (and such Defaulting Bank or Potential Defaulting Bank shall not participate therein). In furtherance of the foregoing, if any Bank becomes, and during the period it remains, a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent or a Potential Defaulting Bank, each Issuing Bank is hereby authorized by each Borrower (which will promptly notify authorization is irrevocable and coupled with an interest) to give, in its discretion, through the Banks thereof)Administrative Agent, a Request for Loan pursuant to Section 8.2 in such amounts and in such event times as may be required to (i) reimburse an outstanding drawing under a Letter of Credit, and/or (ii) Cash Collateralize the provisions obligations of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for in respect of outstanding Letters of Credit in an amount at least equal to the account aggregate amount of the obligations (contingent or otherwise) of such Defaulting Bank or Potential Defaulting Bank in respect of such Letter of Credit.
(b) No Pro Rata Share of the Commitment of any Bank shall be increased or, except as otherwise expressly provided in this Section 2.10, otherwise affected, and performance by each Borrower of its obligations shall not be excused or otherwise modified as a result of the operation of this Section 2.10. The rights and remedies against a Defaulting Bank under this Agreement (whether on account of principalSection 2.10 are in addition to any other rights and remedies which the Company, interest, fees, indemnity or any other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent Administrative Agent, any Issuing Bank or any Bank may have against such Defaulting Bank; and.
(dc) In If the event that the Borrowers Company and the Administrative Agent agree in writing in their discretion reasonable determination that a Defaulting Bank is or a Potential Defaulting Bank should no longer be deemed to be a Defaulting Bank or a Potential Defaulting Bank, as the case may be, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)cash collateral), such that Bank will, to the extent applicable, purchase at par such that portion of outstanding Advances of the other Banks and/or make or take such other adjustments actions as the Administrative Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks Advances to be funded and held on a pro rata basis by the Banks in accordance with their respective CommitmentsPro Rata Share, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-or Potential Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 or Potential Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank or Potential Defaulting Bank.
Appears in 1 contract
Sources: Credit Agreement (Amgen Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Commitment Fees shall cease to accrue on the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees2.10(a);
(ib) Any the Commitment and the outstanding principal amount paid of the Term Loan held by such Defaulting Bank shall not be included in determining whether the Borrowers Required Banks have taken or otherwise received by may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.05); provided that this clause (b) shall not apply to the Agent for the account vote of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account in the case of feesan amendment, indemnity payments waiver or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by modification requiring the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts consent of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting each Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bankaffected thereby;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof)may, and in such event the provisions of Section 2.18(b) will its discretion, apply to all amounts thereafter paid by the Borrowers or hold payments for the account of such Defaulting Bank as set forth in Section 2.13(e);
(d) [reserved],
(e) the Company may, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank, at the expense of such Defaulting Bank, to assign, without recourse (in accordance with and subject to the restrictions contained in Section 10.06), all its interests, rights and obligations under this Agreement by such Defaulting Bank to any Person that shall assume such obligations (whether on account which assignee may be another Bank, if it accepts such assignment) with (and subject to) the consent of principal, interest, fees, indemnity or other amountsthe Administrative Agent (which consent shall not unreasonably be withheld), ; provided that such termination will not be deemed Defaulting Bank shall have received payment of an amount equal to be a waiver the principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such Loans and accrued interest and fees) or release the Company (in the case of any claim any Borrowerall other amounts) (provided that the Company may deduct, or cause such assignee to deduct, from amounts payable by them or it, as applicable, to such Bank hereunder all fees, costs and expenses reasonably incurred by the Agent or any Bank may have against Company in effecting such Defaulting Bankassignment); and
(df) In in the event that the Borrowers and Administrative Agent, the Agent agree in writing in their discretion Company each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will shall cease to be a Defaulting Bank and will be a Non-Defaulting such Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf shall purchase at par such of the Borrowers while Term Loan of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected partieshold such Term Loan in accordance with its Applicable Percentage. Subject to Section 10.16, no change hereunder from Defaulting Bank to Non-Defaulting Bank will readjustment under this Section 2.17(f) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Bank arising from such Bank’s that Bank having been 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.
Appears in 1 contract
Sources: 364 Day Term Loan Credit Agreement (Equitable Holdings, Inc.)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Commitment Fees shall cease to accrue on the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees2.10(a);
(ib) Any amount paid by the Borrowers Commitment and Credit Exposure of such Defaulting Bank shall not be included in determining whether the Required Banks have taken or otherwise received by may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.05); provided that this clause (b) shall not apply to the Agent for the account vote of a Defaulting Bank under this Agreement in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank affected thereby;
(c) with respect to any Fronted LC Exposure (if any):
(i) all or any part of the Fronted LC Exposure of such Defaulting Bank (other than such Fronted LC Exposure that is cash collateralized pursuant to Section 2.16(b)) shall be reallocated among the Non-Defaulting Banks in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all Non-Defaulting Banks’ Credit Exposures plus such Defaulting Bank’s LC Exposure does not exceed the total of all Non-Defaulting Banks’ Commitments and (y) such reallocation does not, as to any amounts representing principal Non-Defaulting Bank, cause such Non-Defaulting Bank’s Credit Exposure to exceed its Commitment (and, if such reallocation can only partially be effected, such reallocation shall be made ratably among the then outstanding Fronted Letters of Credit, unless otherwise agreed by the Fronting Issuing Banks and the Administrative Agent);
(ii) if the reallocation described in clause (i) above cannot, or interest can only partially, be effected, the Subsidiary Account Parties shall within one Business Day following notice by the Administrative Agent, if the Defaulting Bank has not, at the request of the Company pursuant to Section 2.17(e), assigned its interests, rights and obligations hereunder to another Person that is not a Defaulting Bank, (a) cash collateralize for the 4868-9081-7618 v.9 benefit of the applicable Fronting Issuing Bank only the Subsidiary Account Parties’ obligations in respect thereof corresponding to such Defaulting Bank’s Fronted LC Exposure thereunder (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.03(e) for so long as such Fronted LC Exposure is outstanding or (b) to the extent permitted under the terms of the relevant Fronted Letter of Credit, cause one or more of the outstanding Fronted Letters of Credit issued hereunder to be cancelled, reduced or cancelled and reissued in accordance with Section 2.01 in a reduced face amount, so that such Non-NAIC Approved Bank’s Fronted LC Exposure is eliminated (after giving effect to any partial reallocation pursuant to clause (i) above);
(iii) if the Subsidiary Account Parties cash collateralize any portion of such Defaulting Bank’s Fronted LC Exposure pursuant to clause (ii) above, the Subsidiary Account Parties shall not be required to pay any letter of credit fees to such Defaulting Bank pursuant to Section 2.10(b) with respect to such Defaulting Bank’s Fronted LC Exposure during the period and to the extent that such Defaulting Bank’s Fronted LC Exposure is cash collateralized;
(iv) if the Fronted LC Exposure of the Non-Defaulting Banks is reallocated pursuant to clause (i) above, then the letter of credit fees payable to the Banks pursuant to Section 2.10(b) shall be adjusted in accordance with such Non-Defaulting Banks’ Applicable Percentages;
(v) if all or any portion of such Defaulting Bank’s Fronted LC Exposure is not reallocated, cash collateralized or assigned pursuant to clauses (i) or (ii) above, then, without prejudice to any rights or remedies of any applicable Fronting Issuing Bank or any other Bank hereunder, all Commitment Fees that otherwise would have been payable to such Defaulting Bank (whether on account solely with respect to the portion of fees, indemnity payments or other amounts not constituting principal or interestsuch Defaulting Bank’s Commitment that was utilized by such Fronted LC Exposure) will not be paid or distributed and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Bank, but will instead ’s Fronted LC Exposure shall be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banksapplicable Fronting Issuing Banks until and to the extent that such Fronted LC Exposure is reallocated, ratably among them cash collateralized or assigned in accordance with clauses (i) or (ii) above;
(vi) so long as such Bank is a Defaulting Bank, no Fronting Issuing Bank shall be required to issue, amend or increase any Fronted Letter of Credit, unless it is satisfied that the amounts related exposure and the Defaulting Bank’s then outstanding Fronted LC Exposure will be 100% covered by the Commitments of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them and/or cash collateral will be provided by the Subsidiary Account Parties in accordance with Section 2.17(c), and participating interests in any newly issued or increased Fronted Letter of Credit shall be allocated among Non-Defaulting Banks in a manner consistent with Section 2.17(c)(i) (and such Defaulting Bank shall not participate therein); and
(vii) if (i) a Bankruptcy Event or a Bail-In Action with respect to a Parent of any Bank shall occur following the amounts date hereof and for so long as such event shall continue or (ii) any Fronting Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits 4868-9081-7618 v.9 to extend credit, such Fronting Issuing Bank shall not be required to issue, amend or increase any Fronted Letter of Credit, unless such Fronting Issuing Bank shall have entered into arrangements with the Company or such Bank, satisfactory to such Fronting Issuing Bank, to defease any risk to it in respect of such Bank hereunder;
(d) with respect to any Syndicated LC Exposure (if any):
(i) letter of credit fees then due and payable shall cease to themaccrue on such Defaulting Bank’s Syndicated LC Exposure pursuant to Section 2.10(b), fourth except to the ratable payment extent (A) such Defaulting Bank’s Syndicated LC Exposure is the subject of a Confirming Bank Agreement (in which case, such Letter of Credit fees shall be for the account of the applicable Confirming Bank) or (B) as set forth in clause (iii) below;
(ii) with respect to any Syndicated Letter of Credit outstanding at the time such Bank becomes a Defaulting Bank, with the consent of the beneficiary thereunder to the extent required by the terms thereof or under applicable law (including, if applicable, the Uniform Customs and Practices for Documentary Credits governing such Syndicated Letter of Credit), (x) all or any part of the Syndicated LC Exposure of such Defaulting Bank (other amounts than any such Syndicated LC Exposure for which a Confirming Bank is then due and payable acting as a Confirming Bank for such Defaulting Bank pursuant to Section 2.16(b)) shall be reallocated among the Non-Defaulting Banks in accordance with their respective Applicable Percentages but only to the extent (I) the sum of all Non-Defaulting Banks’ Credit Exposures plus such Defaulting Bank’s LC Exposure does not exceed the total of all Non-Defaulting Banks’ Commitments and (II) such reallocation does not, as to any Non-Defaulting Bank, cause such Non-Defaulting Bank’s Credit Exposure to exceed its Commitment and (y) each such Syndicated Letter of Credit (other than any Syndicated Letter of Credit in respect of which a Confirming Bank is then acting as a Confirming Bank for such Bank pursuant to Section 2.16(b)) shall be amended by the Administrative Agent to specify the Banks that are parties to such Syndicated Letter of Credit (excluding, for avoidance of doubt, such Defaulting Bank), after giving effect to such event, and fifth after the termination such Banks’ respective Applicable Percentages as of the Commitments and payment in full effective date of all obligations such amendment;
(iii) if the Syndicated LC Exposure of the Borrowers hereunder, Non-Defaulting Banks is reallocated with respect to pay amounts owing under this Agreement any Syndicated Letter of Credit pursuant to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
clause (ii) Any amount paid by above, then the Borrowers for the account letter of a Defaulting Bank representing principal or interest credit fees payable to the Banks with respect to such Syndicated Letter of Credit pursuant to Section 2.10(b) shall be adjusted in accordance with such Non-Defaulting Banks’ Applicable Percentages; and
(iv) the Syndicated LC Exposures of the Banks in respect of any newly issued Syndicated Letter of Credit shall be allocated among Non-Defaulting Banks in a manner consistent with clause (ii) above (and such Defaulting Bank shall be paid have no obligation under each such Syndicated Letter of Credit to the extent such Defaulting Bank Syndicated LC Exposures in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bankrespect thereof are so reallocated);
(ce) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof)may, and in such event the provisions of Section 2.18(b) will its discretion, apply to all amounts thereafter paid by the Borrowers or hold payments for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements in Section 2.13(e) and until such time as the readjustments with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Nonare effected pursuant to subsection (f) of this 4868-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non9081-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.7618 v.9
Appears in 1 contract
Sources: Revolving Credit Agreement (Equitable Holdings, Inc.)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Commitment Fees shall cease to accrue on the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 2.10(a);
(b) the Commitment and Credit Exposure 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 9.05); 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) with respect to any Fronted LC Exposure (if any):
(i) all or any part of the Fronted LC Exposure of such Defaulting Bank (other than such Fronted LC Exposure that is cash collateralized pursuant to Section 2.16(b)) shall be reallocated among the Non-Defaulting Banks in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all Non-Defaulting Banks’ Credit Exposures plus such Defaulting Bank’s LC Exposure does not exceed the total of all Non-Defaulting Banks’ Commitments and (y) such reallocation does not, as to any Non-Defaulting Bank, cause such Non-Defaulting Bank’s Credit Exposure to exceed its Commitment (and, if such reallocation can only partially be effected, such reallocation shall be made ratably among the then outstanding Fronted Letters of Credit, unless otherwise agreed by the Fronting Issuing Banks and the Administrative Agent);
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Obligors shall within one Domestic Business Day following notice by the Administrative Agent, if the Defaulting Bank has not, at the request of the Company pursuant to Section 2.17(e), assigned its interests, rights and obligations hereunder to another Person that is not a Defaulting Bank, (a) cash collateralize for the benefit of the applicable Fronting Issuing Bank only the Obligors’ obligations in respect thereof corresponding to such Defaulting Bank’s Fronted LC Exposure thereunder (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.03(e) for so long as such Fronted LC Exposure is outstanding or (b) to the extent permitted under the terms of the relevant Fronted Letter of Credit, cause one or more of the outstanding Fronted Letters of Credit issued hereunder to be cancelled, reduced or cancelled and reissued in accordance with Section 2.01 in a reduced face amount, so that such Non-NAIC Approved Bank’s Fronted LC Exposure is eliminated (after giving effect to any partial reallocation pursuant to clause (i) above);
(iii) if the Obligors cash collateralize any portion of such Defaulting Bank’s Fronted LC Exposure pursuant to clause (ii) above, the Obligors shall not be required to pay any letter of credit fees to such Defaulting Bank pursuant to Section 2.10(c) with respect to such Defaulting Bank’s Fronted LC Exposure during the period and to the extent that such Defaulting Bank’s Fronted LC Exposure is cash collateralized; 4879-5062-7662v.12
(iv) if the Fronted LC Exposure of the Non-Defaulting Banks is reallocated pursuant to clause (i) above, then the letter of credit fees payable to the Banks pursuant to Section 2.10(c) shall be adjusted in accordance with such Non-Defaulting Banks’ Applicable Percentages;
(v) if all or any portion of such Defaulting Bank’s Fronted LC Exposure is not reallocated, cash collateralized or assigned pursuant to clauses (i) or (ii) above, then, without prejudice to any rights or remedies of any applicable Fronting Issuing Bank or any other Bank hereunder, all Commitment Fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the rights portion of such Defaulting Bank’s Commitment that was utilized by such Fronted LC Exposure) and letter of credit fees payable under Section 2.10(c) with respect to such Defaulting Bank’s Fronted LC Exposure shall be payable to the applicable Fronting Issuing Banks until and to the extent that such Fronted LC Exposure is reallocated, cash collateralized or assigned in accordance with clauses (i) or (ii) above;
(vi) so long as such Bank is a Defaulting Bank, no Fronting Issuing Bank shall be required to issue, amend or increase any Fronted Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Bank’s then outstanding Fronted LC Exposure will be 100% covered by the Commitments of the Non-Defaulting Banks and/or cash collateral will be provided by the Obligors in accordance with Section 2.17(c), and participating interests in any newly issued or increased Fronted Letter of Credit shall be allocated among Non-Defaulting Banks in a manner consistent with Section 2.17(c)(i) (and such Defaulting Bank shall not participate therein); and
(vii) if (i) a Bankruptcy Event or a Bail-In Action with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any Fronting Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such Fronting Issuing Bank shall not be required to issue, amend or increase any Fronted Letter of Credit, unless such Fronting Issuing Bank shall have entered into arrangements with the Company or such Bank, satisfactory to such Fronting Issuing Bank, to defease any risk to it in respect of such Bank hereunder;
(d) with respect to any Syndicated LC Exposure (if any):
(i) letter of credit fees shall cease to accrue on such Defaulting Bank’s Syndicated LC Exposure pursuant to Section 2.10(b), except to the extent (A) such Defaulting Bank’s Syndicated LC Exposure is the subject of a Confirming Bank Agreement (in which case, such Letter of Credit fees shall be for the account of the applicable Confirming Bank) or (B) as set forth in clause (iii) below;
(ii) with respect to any Syndicated Letter of Credit outstanding at the time such Bank becomes a Defaulting Bank, with the consent of the beneficiary thereunder to the extent required by the terms thereof or under applicable law (including, if applicable, the Uniform Customs and Practices for Documentary Credits governing such Syndicated Letter of Credit), (x) all or any part of the Syndicated LC Exposure of such Defaulting Bank (other than any such Syndicated LC Exposure for which a Confirming Bank is then acting as a Confirming Bank for such Defaulting Bank pursuant to Section 2.16(b)) shall be 4879-5062-7662v.12 reallocated among the Non-Defaulting Banks in accordance with their respective Applicable Percentages but only to the extent (I) the sum of all Non-Defaulting Banks’ Credit Exposures plus such Defaulting Bank’s LC Exposure does not exceed the total of all Non-Defaulting Banks’ Commitments and (II) such reallocation does not, as to any Non-Defaulting Bank, cause such Non-Defaulting Bank’s Credit Exposure to exceed its Commitment and (y) each such Syndicated Letter of Credit (other than any Syndicated Letter of Credit in respect of which a Confirming Bank is then acting as a Confirming Bank for such Bank pursuant to Section 2.16(b)) shall be amended by the Administrative Agent to specify the Banks that are parties to such Syndicated Letter of Credit (excluding, for avoidance of doubt, such Defaulting Bank), after giving effect to such event, and such Banks’ respective Applicable Percentages as of the effective date of such amendment;
(iii) if the Syndicated LC Exposure of the Non-Defaulting Banks is reallocated with respect to any Syndicated Letter of Credit pursuant to clause (ii) above, then the letter of credit fees payable to the Banks with respect to such Syndicated Letter of Credit pursuant to Section 2.10(b) shall be adjusted in accordance with such Non-Defaulting Banks’ Applicable Percentages; and
(iv) the Syndicated LC Exposures of the Banks in respect of any newly issued Syndicated Letter of Credit shall be allocated among Non-Defaulting Banks in a manner consistent with clause (ii) above (and such feesDefaulting Bank shall have no obligation under each such Syndicated Letter of Credit to the extent such Syndicated LC Exposures in respect thereof are so reallocated);
(i) Any amount paid by the Borrowers Administrative Agent may, in its discretion, apply or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity hold payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank as set forth in Section 2.13(e) and until such time as the readjustments with respect to such Defaulting Bank are effected pursuant to subsection (f) of this Section 2.17, the Company may, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank, at the expense of such Defaulting Bank, to assign, without recourse (in accordance with and subject to the restrictions contained in Section 9.06), all its interests, rights and obligations under this Agreement and the Letters of Credit issued, or participated in, by such Defaulting Bank to any Person that shall assume such obligations (whether on account which assignee may be another Bank, if it accepts such assignment) with (and subject to) the consent of principalthe Administrative Agent (which consent shall not unreasonably be withheld); provided that (x) such Defaulting Bank shall have received payment of an amount equal to the outstanding amount of its LC Disbursements (including participations therein), interestprincipal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding LC Disbursements, Loans and accrued interest and fees) or the Company (in the case of all other amounts) (provided that the Company may deduct, or cause such assignee to deduct, from amounts payable by them or it, as applicable, to such Bank hereunder all fees, indemnity or other amounts)costs and expenses reasonably incurred by the Company in effecting such assignment) and (y) concurrently with such assignment, provided that to the extent any LC Exposure of such termination will not be deemed Defaulting Bank theretofore shall have been reallocated pursuant to be a waiver or release of any claim any Borrowerthis Section 2.17, the Agent or any Bank may have against Credit Exposures of the Banks (including, after giving effect to such assignment, such assignee) shall be readjusted (and payments made by the relevant parties) in a manner consistent with subsection (f) of this Section 2.17, such that, after giving effect thereto, the Banks (including such assignee, but not such Defaulting Bank; and
) shall hold the Credit Exposures then outstanding in accordance with their respective Applicable Percentages and (dii) In to the event that extent the Borrowers and the Agent agree in writing in their discretion that a GBSA Bank is no longer a Defaulting Bank, the Agent will so notify Company may terminate the parties heretoCommitments of the GBSA Bank and repay the outstanding principal of its Loans, whereupon accrued interest thereon, accrued fees and all other amounts payable to it hereunder as of the effective date specified in such notice termination; and subject to any conditions set forth therein 4879-5062-7662v.12
(which may include arrangements with respect to any amounts then held f) in the segregated account referred to in Section 2.18(b))event that the Administrative Agent, such Bank will, the Company and (to the extent applicable, purchase at par there shall be Fronted Letters of Credit then outstanding) each Fronting Issuing Bank each agrees that a Defaulting Bank has adequately remedied all matters that caused such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine Bank to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective CommitmentsDefaulting Bank, whereupon then such Bank will shall cease to be a Defaulting Bank and will the Credit Exposures of the Banks shall be readjusted as follows:
(i) with respect to any Fronted LC Exposure then outstanding, such Fronted LC Exposure shall be readjusted to reflect the inclusion of such Bank’s Commitment and such Bank shall purchase at par such of the unreimbursed LC Disbursements then outstanding (if any) of the other Banks in respect of such Fronted LC Exposure as the Administrative Agent shall determine may be necessary in order for such Bank to hold such LC Disbursements in accordance with its Applicable Percentage;
(ii) with respect to any Syndicated LC Exposure then outstanding, (x) with the consent of the beneficiary under each outstanding Syndicated Letter of Credit to the extent required by the terms thereof or under applicable law (including, if applicable, the Uniform Customs and Practices for Documentary Credits governing such Syndicated Letter of Credit) and to the extent such Syndicated Letter of Credit was theretofore amended or issued pursuant to subsection (d)(ii) or (d)(iv), as applicable, of this Section 2.17 to reflect the exclusion of such Bank’s Commitment, (I) each such Syndicated Letter of Credit shall be amended by the Administrative Agent to specify the Banks (including such Bank) that are then parties to such Syndicated Letter of Credit and such Banks’ respective Applicable Percentages, in each case reflecting the inclusion of such Bank’s Commitment, as of the effective date of such amendment and (II) if such Syndicated Letter of Credit was not theretofore amended pursuant to subsection (d)(ii) of this Section 2.17 to reflect the exclusion of such Bank’s Commitment thereunder, but instead the face amount of such Syndicated Letter of Credit was increased or a new Letter of Credit was issued hereunder in favor of the beneficiary of such Syndicated Letter of Credit in order to provide such beneficiary with an aggregate undrawn face amount of Letters of Credit from the Non-Defaulting Bank Banks (and each including, if applicable, the applicable Fronting Issuing Banks) in the amount required by such beneficiary, the amount of such Syndicated Letter of Credit or new Letter of Credit shall be amended by the Administrative Agent to decrease the amount thereof, or the Obligors shall arrange for such new Letter of Credit to be surrendered by such beneficiary to the Administrative Agent or the applicable Fronting Issuing Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis , in order to reflect the foregoing); inclusion of such Bank’s Commitment pursuant to the amendment to such Syndicated Letter of Credit under sub-clause (I) above (provided that no adjustments will that, notwithstanding anything herein to the contrary, the Obligors shall not be made retroactively required to pay any letter of credit fees to such Bank pursuant to Section 2.10(b) until such amendments with respect to fees accrued or payments made by or on behalf such Letters of Credit shall have become effective); (y) (subject to clause (x) being satisfied with respect to a Syndicated Letter of Credit) the Syndicated LC Exposure of the Borrowers while Banks with respect to such Syndicated Letter of Credit shall be readjusted to reflect the inclusion of such Bank’s Commitment; and (z) (subject to clause (x) being satisfied with respect to a Syndicated Letter of Credit) such Bank was a Defaulting Bankshall purchase at par such of the unreimbursed LC Disbursements then outstanding (if any) of the other Banks with respect to such Syndicated Letter of Credit as the Administrative Agent shall determine may be necessary in order for such Bank to hold such LC Disbursements in accordance with its Applicable Percentage; and providedand
(iii) with respect to any Loans then outstanding, further, that except 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 the extent otherwise expressly agreed by the affected partieshold such Loans in accordance with its Applicable Percentage. 4879-5062-7662v.12 Subject to Section 9.16, no change hereunder from Defaulting Bank to Non-Defaulting Bank will readjustment under this Section 2.17(f) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Bank arising from such Bank’s that Bank having been 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.
Appears in 1 contract
Sources: Revolving Credit Agreement (Jackson Financial Inc.)
Defaulting Banks. Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long then, until such time as such Bank is no longer a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice , to the rights of the Banks other than Defaulting Banks in respect of such fees);extent permitted by applicable law:
(i) Any amount paid by the Borrowers such Defaulting Bank’s right to approve or otherwise disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in §15.9;
(ii) any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of a Defaulting any such Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feessuch Bank’s Syndicated Loans, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will shall be applied by the AgentAdministrative Agent as follows: first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such that Defaulting Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Bank to the Issuing Banks or Swing Line Bank hereunder; third, if so determined by the Administrative Agent or requested by the Issuing Banks or Swing Line Bank, to be held as cash collateral for future funding obligations of that Defaulting Bank of any participation in any Swing Line Loan or Letter of Credit (and each such Bank hereby grants to the Administrative Agent a security interest therein); fourth, if the Borrower so requests (so long as no Default or Event of Default exists), to the funding of any Syndicated Loan in respect of which that Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Bank to fund Syndicated Loans under this Agreement; sixth, second to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Defaulting Banks, ratably among them in accordance with the amounts Banks as a result of such interest then due and payable to them, third to the payment any judgment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid obtained by any Bank against that Defaulting Bank as a result of that Defaulting Bank’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers for Borrower against that Defaulting Bank as a result of that Defaulting Bank’s breach of its obligations under this Agreement; and eighth, to that Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided that if (x) such payment is a payment of the account principal amount of any Syndicated Loans or Letter of Credit Participations in respect of which that Defaulting Bank has not fully funded its appropriate share and (y) such Loans or Letter of Credit Participations were made at a time when the conditions set forth in §11 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Letter of Credit Participations owed to, all non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loans of, or Letter of Credit Participations owed to, that Defaulting Bank (and any such amounts paid or payable to a Defaulting Bank representing principal that are applied to pay amounts owed by a Defaulting Bank or interest payable to post cash collateral pursuant to this §5.14 shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto);
(iii) such Defaulting Bank (x) shall be entitled to receive Facility Fees only to extent allocable to the sum of (1) the outstanding amount of the Syndicated Loans funded by it and (2) its Commitment Percentage of the stated amount of Letters of Credit and Swing Line Loans for which it has provided cash collateral or other credit support satisfactory to each Issuing Bank (in its sole discretion) and the Swing Line Bank (in its sole discretion)(and the Borrower shall (A) be required to pay to each Issuing Bank and the Swing Line Bank, as applicable, the amount of such Facility Fee allocable to its fronting exposure arising from that Defaulting Bank and (B) not be required to pay the remaining amount of such fee that otherwise would have been required to have been paid to that Defaulting Bank) and (y) shall be limited in its right to receive Letter of Credit Fees as provided in §3.6;
(iv) for purposes of computing the amount of the obligation of each non-Defaulting Bank to acquire, refinance or fund participations in Letters of Credit or Swing Line Loans hereunder, including, without limitation, under §3.1(c), the “Commitment Percentage” of each non-Defaulting Bank shall be paid computed without giving effect to such the Commitment of that Defaulting Bank in using a fraction the same amounts and in numerator of which is the same manner as if Commitment of such non-Defaulting Bank were a Nonand the denominator of which is the aggregate Commitments of all non-Defaulting Bank;
Banks; provided, that, the aggregate obligation of each non-Defaulting Bank to acquire, refinance or fund participations in Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of (c1) The Borrowers may terminate the unused Commitment of that non-Defaulting Bank minus (2) the aggregate outstanding amount of the Commitment Syndicated Loans of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such non-Defaulting Bank; and
(dv) In immediately upon the request of the Administrative Agent or any Issuing Bank and provided that such Defaulting Bank has not provided cash collateral or other credit support satisfactory to the Administrative Agent or each such Issuing Bank (in its sole discretion)(which each Bank hereby agrees to provide in the event that it becomes a Defaulting Bank), the Borrowers Borrower shall deliver to the Administrative Agent cash collateral or other credit support satisfactory to the Administrative Agent or each such Issuing Bank (in its sole discretion) (and the Borrower hereby grants to the Administrative Agent a security interest therein) in an amount sufficient to cover the fronting exposure of such Persons for the Defaulting Bank’s participation in any outstanding Letters of Credit after giving effect to the reallocation of such exposure to the non-Defaulting Banks pursuant to clause (iv) above and any cash collateral or other credit support provided by the Defaulting Bank. If the Borrower, the Administrative Agent, the Swing Line Bank and the Issuing Banks agree in writing in their sole discretion that a Defaulting Bank is should no longer be deemed to be a Defaulting Bank, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b))therein, such Bank will, to the extent applicable, will purchase at par such portion of outstanding Advances Syndicated Loans of the other Banks and/or make or take such other adjustments actions as the Administrative Agent may determine to be necessary to cause the Revolving Syndicated Loans and funded and unfunded participations in Letters of Credit Obligations of the Banks and Swing Line Loans to be held on a pro rata basis by the Banks in accordance with their respective CommitmentsCommitment Percentages (disregarding any portions not funded by other Defaulting Banks), whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Borrower while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement Anything contained herein to the contrarycontrary notwithstanding, if in the event that any Bank becomes Bank, other than at the direction or request of any regulatory agency or authority, defaults (a “Defaulting Bank”) in its obligation to fund (a “Funding Default”) any Revolving Loan or its portion of any unreimbursed payment under Section 2.2(b)(iv) or 2.4(e) (in each case, a “Defaulted Loan”), then (a) during any Default Period with respect to such Defaulting Bank, then such Defaulting Bank shall be deemed not to be a “Bank” for purposes of voting on any matters (including the following provisions granting of any consents or waivers) with respect to any of the Credit Documents; (b) to the extent permitted by applicable law, until such time as the Default Excess with respect to such Defaulting Bank shall apply for have been reduced to zero, (i) any voluntary prepayment of the Revolving Loans shall, if a Borrower so long directs at the time of making such voluntary prepayment, be applied to the Revolving Loans of other Banks as if such Defaulting Bank is had no Revolving Loans outstanding and the Revolving Exposure of such Defaulting Bank were zero, and (ii) any mandatory prepayment of the Revolving Loans shall, if a Borrower so directs at the time of making such mandatory prepayment, be applied to the Revolving Loans of other Banks (but not to the Revolving Loans of such Defaulting Bank:
(a) Such as if such Defaulting Bank will had funded all Defaulted Loans of such Defaulting Bank, it being understood and agreed that such Borrower shall be entitled to retain any portion of any mandatory prepayment of the Revolving Loans that is not paid to such Defaulting Bank solely as a result of the operation of the provisions of this clause (b); (c) such Defaulting Bank’s Revolving Commitment and outstanding Revolving Loans and such Defaulting Bank’s Pro Rata Share of the Letter of Credit Usage shall be excluded for purposes of calculating the Revolving Commitment fee payable to Banks in respect of any day during any Default Period with respect to such Defaulting Bank, and such Defaulting Bank shall not be entitled to receive any fees accruing during such period Revolving Commitment fee pursuant to Section 2.04 (without prejudice 2.11 with respect to the rights of the Banks other than such Defaulting Banks Bank’s Revolving Commitment in respect of any Default Period with respect to such fees);
Defaulting Bank; and (id) Any amount paid by the Borrowers Total Utilization of Tranche 1 Revolving Commitments as at any date of determination shall be calculated as if such Defaulting Bank had funded all Defaulted Loans of such Defaulting Bank. No Revolving Commitment of any Bank shall be increased or otherwise received affected, and, except as otherwise expressly provided in this Section 2.23, performance by each Borrower of its obligations hereunder and the Agent for other Credit Documents shall not be excused or otherwise modified as a result of any Funding Default or the account operation of this Section 2.23. The rights and remedies against a Defaulting Bank under this Agreement Section 2.23 are in addition to other than any amounts representing principal or interest payable to rights and remedies which each Borrower may have against such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed with respect to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments any Funding Default and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Administrative Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting BankFunding Default.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Xerium Technologies Inc)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement anything to the contrarycontrary contained herein, if the Maximum Credit AmountCommitments and Loans of a Defaulting Bank shall not be included in determining whether all Banks, the Super Majority Banks, the Required Banks, the Required Term Banks, or the Required Revolving Banks have taken or may take any action hereunder (including approval of any redetermination of the Borrowing Base pursuant to Article IV and any consent to any amendment or waiver pursuant to Section 14.2); provided that, any waiver, amendment or modification requiring the consent of all Banks or each affected Bank becomes a which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank; and provided further that in no event shall (i) the Commitment, Elected Revolving Commitment or Maximum Credit Amount of any Defaulting Bank be increased or amounts owed to such Defaulting Bank reduced without the consent of such Defaulting Bank, then or (ii) the following provisions shall apply Terminationany Maturity Date or any date fixed for so long as any payment of principal of or interest on theany Loan or any fees hereunder be postponed without the consent of such Defaulting Bank to the extent such Defaulting Bank is a Defaulting Bank:adversely affected thereby.
(b) If any Bank shall fail to make any payment referenced in clause (a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than definition of “Defaulting Banks Bank”, then the Administrative Agent may, in respect of such fees);
its discretion and notwithstanding any contrary provision hereof, (i) Any amount paid by the Borrowers or otherwise apply any amounts thereafter received by the Administrative Agent for the account of a Defaulting such Bank under this Agreement other than and for the benefit of the Administrative Agent or any Letter of Credit Issuer to satisfy such Bank’s obligations hereunder until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until as cash collateral for, and application to, any future funding obligations of such Bank hereunder; in the case of each of (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion; provided that, subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties14.17, no change reallocation hereunder from Defaulting Bank to Non-Defaulting Bank will shall constitute a waiver or release of any claim of any party hereunder arising from against such Bank as a result of such Bank’s having been increased exposure following such reallocation.
(c) Borrower shall not be obligated to pay the Administrative Agent any Defaulting Bank’s ratable share of the fees described in Sections 2.11, 2.12 or 2.13 (notwithstanding anything to the contrary in such sections) for the period commencing on the day such Defaulting Bank becomes a Defaulting Bank and continuing for so long as such Bank continues to be a Defaulting Bank.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement to
(a) If a Bank becomes, and during the contraryperiod it remains, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount amounts paid by the Borrowers Borrower or otherwise received by the Administrative Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of principal, interest, fees, indemnity payments or other amounts not constituting principal or interestamounts) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Administrative Agent in a segregated non-interest bearing account until (subject to Section 2.18(d2.9(c)) the termination of the Commitments and payment in full of all obligations of the Borrowers Borrower hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Banks hereunder other than Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to pay principal then due and payable to the Non-Defaulting Banks hereunder ratably in accordance with the amounts thereof then due and payable to them, fifth to the ratable payment of other amounts then due due and payable to the Non-Defaulting Banks, and fifth sixth after the termination of the Commitments and payment in full of all obligations of the Borrowers Borrower hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section 2.9(a) shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
(iib) Any amount paid No Commitment of any Bank shall be increased or, except as otherwise expressly provided in Section 2.9(a), otherwise affected, and performance by the Borrowers for Borrower of its obligations shall not be excused or otherwise modified as a result of the account operation of Section 2.9(a). The rights and remedies against a Defaulting Bank representing principal or interest payable under Section 2.9(a) are in addition to such Defaulting Bank shall be paid to such Defaulting Bank in any other rights and remedies which the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Administrative Agent or any Bank may have against such Defaulting Bank; and.
(dc) In If the event that the Borrowers Borrower and the Administrative Agent agree in writing in their discretion reasonable determination that a Defaulting Bank is or a Potential Defaulting Bank should no longer be deemed to be a Defaulting Bank or a Potential Defaulting Bank, as the case may be, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)cash collateral), such that Bank will, to the extent applicable, purchase at par such that portion of outstanding Advances of the other Banks and/or make or take such other adjustments actions as the Administrative Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks Advances to be funded and held on a pro rata basis by the Banks in accordance with their respective CommitmentsCommitments and Advances, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-or Potential Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Borrower while such 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 or Potential Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.Bank or Potential Defaulting Bank.
Appears in 1 contract
Sources: Term Loan Credit Agreement
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees2.5(a);
(ib) Any amount paid by the Borrowers payment of principal, interest, fees or otherwise other amounts received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesvoluntary or mandatory, indemnity payments at maturity, pursuant to Section 9.2 or other amounts not constituting principal otherwise) or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained received by the Agent in from a segregated non-interest bearing account until (subject Defaulting Bank pursuant to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will 12.10 shall be applied at such time or times as may be determined by the AgentAgent as follows: first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to the applicable LC Issuer hereunder; third, to cash collateralize any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations in accordance with this Section; fourth, unless a Default or Event of Default exists, as the Company may request to fund any 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; fifth, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Bank’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize the future portion of such Defaulting Bank’s Pro Rata Share of LC Obligations with respect to future Facility LCs issued under this Agreement, second in accordance with this Section; sixth, to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Banks or the LC Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Bank or any LC Issuer against such Defaulting Banks, ratably among them in accordance with the amounts Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement or under any other Credit Document; seventh, third so long as no Default or Event of Default exists, to the payment of fees then due and payable any amounts owing to the Non-Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting Banks hereunder, ratably among them in accordance with the amounts Bank as a result of such fees then due and payable to them, fourth to the ratable payment Defaulting Bank’s breach of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all its obligations of the Borrowers hereunder, to pay amounts owing under this Agreement or under any other Credit Document; and eighth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or disbursements of Facility LCs in respect of which such Defaulting Bank has not fully funded its appropriate share, and (y) such Loans were made or the related Facility LCs were issued at a time when the conditions set forth in Section 11.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and disbursements of Facility LCs owed to, all non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loans of, or disbursements of Facility LCs owed to, such Defaulting Bank until such time as all Loans and funded and unfunded participations in the Company’s obligations corresponding to such Defaulting Bank’s Pro Rata Share of LC Obligations are held by the Banks pro rata in accordance with the Commitments without giving effect to clause (d) below. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto;
(c) the Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.1); provided, that, except as otherwise direct.provided in Section 10.1, this clause (c) 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 directly affected thereby;
(d) if any LC Obligations exist at the time a Bank becomes a Defaulting Bank then:
(i) so long as no Default or Event of Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of such LC Obligation shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro Rata Share but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments, (y) no Bank’s Outstanding Credit Exposure shall exceed its Commitment and (z) the conditions set forth in Section 11.2 are satisfied at such time;
(ii) Any amount paid if the reallocation described in subclause (i) above cannot, or can only partially, be effected, the Company shall within one (1) Business Day following notice by the Borrowers Agent, cash collateralize for the account benefit of a the relevant LC Issuer such Defaulting Bank’s Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to subclause (i) above) in accordance with the procedures set forth in Section 9.2 for so long as such LC Obligation is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant this clause (d), the Company shall not be required to pay any fees to such Defaulting Bank representing principal pursuant to Section 3.4 with respect to such Defaulting Bank’s Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if the non-Defaulting Banks’ Pro Rata Share of the LC Obligations is reallocated pursuant to this clause (d), then the fees payable to the Banks pursuant to Section 2.5(a) and Section 3.4 shall be adjusted in accordance with such non-Defaulting Banks’ Pro Rata Shares; or
(v) if any Defaulting Bank’s Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (d), then, without prejudice to any rights or interest remedies of any LC Issuer or any Bank hereunder, all fees that otherwise would have been payable to such Defaulting Bank shall be paid (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such LC Obligations) and LC Fees payable under Section 3.4 with respect to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount ’s Pro Rata Share of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice LC Obligations shall be payable to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of the LC Obligation is cash collateralized and/or reallocated; and
(e) so long as any Bank is a Defaulting Bank, no LC Issuer shall be required to issue or Modify any Facility LC, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Company in accordance with clause (d) above, and participating interests in any such newly issued or Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with clause (d)(i) above (and Defaulting Banks shall not participate therein).
(f) If (i) a Bankruptcy Event or Bail-In Action with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuer has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, such LC Issuer shall not be required to issue, amend or increase any Facility LC, unless such LC Issuer, as the case may be, shall have entered into arrangements with the Company or such Bank, satisfactory to such LC Issuer, as the case may be, to defease any risk to it in respect of such Bank hereunder.
(g) In the event that the Borrowers Agent, the Company, and the Agent agree in writing in their discretion each LC Issuer each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify the parties hereto, whereupon as Banks’ Pro Rata Shares of the effective LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Loans of the other Banks and/or make such other adjustments as the Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Loans in accordance with their respective Commitmentsits Pro Rata Share of the Aggregate Commitment; provided, whereupon that if the Company cash collateralized any portion of such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf Pro Rata Share of the Borrowers while LC Obligations pursuant to Section 4.7(d), such Bank was a Defaulting Bank; and provided, further, that except cash shall be returned to the extent otherwise expressly agreed by the affected partiesCompany.
(h) Subject to Section 12.18, no change reallocation hereunder from Defaulting Bank to Non-Defaulting Bank will shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Bank arising from such Bank’s party having been 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.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if If any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such the facility fee shall cease to accrue on the unused portion of the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees)2.08;
(b) the Commitment and Loans of such Defaulting Bank shall not be included in determining whether all Banks or the Required Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 9.05), provided that (i) Any amount paid by any amendment or waiver requiring the Borrowers consent of all Banks or otherwise received by the Agent for the account of a each affected Bank which affects such Defaulting Bank under this Agreement differently than other affected Banks shall require the consent of such Defaulting Bank, (ii) the Commitment of such Defaulting Bank may not be increased or extended, the principal of or the rate of interest for Loans (other than any amounts representing the rates of interest for overdue principal or interest provided for in Section 9.05, Section 2.07(c) or in the last sentence of Section 2.07(d)) of such Defaulting Bank or fees or other amounts payable hereunder or under any other Financing Document to such Defaulting Bank may not be reduced without the consent of such Defaulting Bank, and (iii) any amendment of, or consent or waiver with respect to, this Section 8.07 shall require the consent of the Required Banks and each Defaulting Bank; and
(c) any amount payable to such Defaulting Bank hereunder (whether on account of feesprincipal, indemnity payments interest, fees or other amounts not constituting principal or interestotherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 9.04 but excluding Section 8.06(b)) will not be paid or shall, in lieu of being distributed to such Defaulting Bank, but will instead be retained by the Administrative Agent in a segregated non-interest bearing account until (and, subject to Section 2.18(d)) the termination any applicable requirements of the Commitments and payment in full of all obligations of the Borrowers hereunder and will law, be applied at such time or times as may be determined by the Agent, to the fullest extent permitted by law, to the making of payments from time to time Administrative Agent in the following order of priority: first (i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder; (ii) second, to the funding of any Loan 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; (iii) third, if so determined by the Administrative Agent and the Company, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any Loans under this Agreement; (iv) fourth, second to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Banks, ratably among them in accordance with the amounts Bank as a result of such interest then due and payable to them, third to the payment Defaulting Bank’s breach of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all its obligations of the Borrowers hereunder, to pay amounts owing under this Agreement Agreement; and (v) fifth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise direct.
jurisdiction, provided, with respect to this clause (iiv), that if such payment is (x) Any a prepayment of the principal amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to any Loans which such Defaulting Bank has funded and (y) made at a time when the conditions set forth in Section 3.02 are satisfied, such payment shall be paid applied solely to such Defaulting Bank in prepay the same amounts and in the same manner as if such Defaulting Bank were a NonCommitted Loans of all non-Defaulting Bank;
(c) The Borrowers may terminate Banks pro rata prior to being applied to the unused amount prepayment of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account Loans of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) . In the event that the Borrowers Administrative Agent and the Agent agree in writing in their discretion Company each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective then on such date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Committed Loans of the other Banks and/or make such other adjustments as the Administrative Agent shall determine may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon order for such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis hold Committed Loans in proportion to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bankits Commitment.
Appears in 1 contract
Sources: Credit Agreement (Heinz H J Co)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 2.8;
(without prejudice b) the Bank Percentage of such Defaulting Bank shall not be included in determining whether all Banks or the Required Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 10.08), provided that this clause (b) shall not apply to the rights vote of a Defaulting Bank in the Banks case of an amendment, waiver or other than Defaulting Banks in respect modification requiring the consent of such fees)Bank or each Bank affected thereby;
(c) if any L/C Obligations exist at the time a Bank becomes a Defaulting Bank then:
(i) Any all or any part of such Defaulting Bank’s Bank Percentage of the L/C Obligations shall be reallocated among the non-Defaulting Banks in accordance with their respective Bank Percentages but only to the extent the sum of all non-Defaulting Banks’ Standby Loans and their Bank Percentages of the L/C Obligations and the outstanding Competitive Loans expressed as a dollar amount paid plus such Defaulting Bank’s Bank Percentage of the L/C Obligations does not exceed the total of all non-Defaulting Banks’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within one Business Day following notice by the Borrowers or otherwise received by Agent, cash collateralize such Defaulting Bank’s Bank Percentage of the Agent L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Article VIII for so long as such Defaulting Bank’s Bank Percentage of the account L/C Obligations is outstanding;
(iii) if the Borrower cash collateralizes any portion of a such Defaulting Bank’s Bank Percentage of the L/C Obligations pursuant to Section 2.23(c)(ii), the Borrower shall not be required to pay any fees to such Defaulting Bank under pursuant to Section 3.03 with respect to such Defaulting Bank’s Bank Percentage of the L/C Obligations during the period such Defaulting Bank’s Bank Percentage of the L/C Obligations is cash collateralized;
(iv) if the Bank Percentages of the L/C Obligations of the non-Defaulting Banks are reallocated pursuant to Section 2.23(c)(i), then the fees payable to the Banks pursuant to Section 2.06 and Section 3.03 shall be adjusted in accordance with such non-Defaulting Banks’ Bank Percentages; and
(v) if any Defaulting Bank’s Bank Percentage of the L/C Obligations is neither cash collateralized nor reallocated pursuant to this Agreement other than Section 2.23(c), then, without prejudice to any amounts representing principal rights or interest remedies of the Issuing Bank or any Bank hereunder, all Facility Fees that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such Defaulting Bank’s Bank Percentage of the L/C Obligations) and letter of credit fees payable under Section 3.03 with respect to such Defaulting Bank’s Bank Percentage of the L/C Obligations shall be payable to the Issuing Bank until such Defaulting Bank’s Bank Percentage of the L/C Obligations is cash collateralized and/or reallocated; and
(d) 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 and/or cash collateral provided by the Borrower in accordance with Section 2.23(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 Section 2.23(c)(i) (and Defaulting Banks shall not participate therein); and
(e) any amount payable to such Defaulting Bank hereunder (whether on account of feesprincipal, indemnity payments interest, fees or other amounts not constituting principal or interestotherwise and including any amount that would otherwise be payable to such Defaulting Bank) will not be paid or shall, in lieu of being distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (and, subject to Section 2.18(d)) the termination any applicable requirements of the Commitments and payment in full of all obligations of the Borrowers hereunder and will law, be applied at such time or times as may be determined by the AgentAgent (i) first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Bank to the Issuing Bank hereunder, (iii) third, if so determined by the Agent or requested by an Issuing Bank, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any existing or future participating interest in any Letter of Credit, (iv) fourth, to the funding of any 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, (v) fifth, if so determined by the Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Bank in respect of any Loans under this Agreement, second (vi) sixth, to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Banks or an Issuing Bank as a result of any judgment of a court of competent jurisdiction obtained by any Bank or such Issuing Bank against such Defaulting Banks, ratably among them in accordance with the amounts Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement, third (vii) seventh, to the payment of fees then due and payable any amounts owing to the Non-Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Banks hereunder, ratably among them in accordance with the amounts Bank as a result of such fees then due and payable to them, fourth to the ratable payment Defaulting Bank’s breach of other amounts then due and payable to the Non-Defaulting Banksits obligations under this Agreement, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder(viii) eighth, to pay amounts owing under this Agreement to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise direct.
jurisdiction, provided, with respect to this clause (iiviii), that if such payment is (x) Any a prepayment of the principal amount paid by the Borrowers for the account of any Loans or Reimbursement Obligations which a Defaulting Bank representing principal or interest payable to has funded its participation obligations and (y) made at a time when the conditions set forth in Section 5.01 are satisfied, such Defaulting Bank payment shall be paid applied solely to such Defaulting Bank in prepay the same amounts Loans of, and in the same manner as if such Defaulting Bank were a NonReimbursement Obligations owed to, all non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ Banks pro rata prior notice to being applied to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release prepayment of any claim Loans, or Reimbursement Obligations owed to, any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) . In the event that the Borrowers Agent, the Borrower and the Agent agree in writing in their discretion Issuing Bank each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify the parties hereto, whereupon as Bank Percentages of the effective L/C Obligations of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Standby Loans of the other Banks and/or make such other adjustments as the Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Loans in accordance with their respective Commitmentsits Bank Percentage.”
(e) Section 10.08(b) of the Credit Agreement is hereby amended by inserting at the end thereof, whereupon immediately before the period, the following proviso: “; provided further that no such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (agreement shall amend, modify or waive any provision of Section 2.23 without the written consent of the Agent and each Issuing Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank”.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such [reserved];
(b) the outstanding principal amount of Term Loans held by such Defaulting Bank will shall not be entitled included in determining whether the Required Banks have taken or may take any action hereunder (including any consent to any fees accruing during such period amendment, waiver or other modification pursuant to Section 2.04 10.05); provided that this clause (without prejudice b) shall not apply to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent for the account vote of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account in the case of feesan amendment, indemnity payments waiver or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by modification requiring the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts consent of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting each Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bankaffected thereby;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof)may, and in such event the provisions of Section 2.18(b) will its discretion, apply to all amounts thereafter paid by the Borrowers or hold payments for the account of such Defaulting Bank under this Agreement as set forth in Section 2.13(e);
(whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bankd) [Reserved]; and
(de) In the event that the Borrowers Company may, upon notice to such Defaulting Bank and the Agent agree in writing in their discretion that a Bank is no longer a Administrative Agent, require such Defaulting Bank, at the Agent will so notify the parties heretoexpense of such Defaulting Bank, whereupon as of the effective date specified to assign, without recourse (in such notice accordance with and subject to the restrictions contained in Section 10.06), all its interests, rights and obligations under this Agreement by such Defaulting Bank to any conditions set forth therein Person that shall assume such obligations (which Assignee may include arrangements be another Bank, if it accepts such assignment) with respect to any amounts then held in (and subject to) the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances consent of the other Banks and/or make such other adjustments as the Administrative Agent may determine to (which consent shall not unreasonably be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoingwithheld); provided that no adjustments will be made retroactively with respect such Defaulting Bank shall have received payment of an amount equal to the outstanding principal of its Term Loans, accrued interest thereon, accrued fees accrued or payments made by or on behalf of and all other amounts payable to it hereunder, from the Borrowers while such Bank was a Defaulting Bank; and provided, further, that except assignee (to the extent otherwise expressly agreed of such outstanding Term Loans and accrued interest and fees) or the Company (in the case of all other amounts) (provided that the Company may deduct, or cause such assignee to deduct, from amounts payable by them or it, as applicable, to such Bank hereunder all fees, costs and expenses reasonably incurred by the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from Company in effecting such Bank’s having been a Defaulting Bankassignment).
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d2.17(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b2.17(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b2.17(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from 55 Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 1 contract
Sources: Credit Agreement (Caterpillar Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 4.1;
(without prejudice b) the Credit Exposure 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 12.4); provided, that this clause (b) shall not apply to the rights vote of a Defaulting Bank in the Banks case of an amendment, waiver or other than Defaulting Banks in respect modification requiring the consent of such fees)Bank or each Bank affected thereby;
(c) if any Swingline Advances are outstanding at the time such Bank becomes a Defaulting Bank then:
(i) Any amount paid by the Borrowers all or otherwise received by the Agent for the account any part of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead ’s participation in Swingline Advances shall be retained by reallocated among the Agent in a segregated non-interest bearing account until (subject Defaulting Banks in accordance with their respective Percentages but only to Section 2.18(d)) the termination of extent the Commitments and payment in full sum of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Nonnon-Defaulting Banks, ratably among them in accordance with ’ Committed Outstandings plus such Defaulting Bank’s Percentage of Swingline Advances does not exceed the amounts total of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Nonall non-Defaulting Banks’ Commitments and, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement giving effect to such reallocation, the Committed Outstandings of each non-Defaulting Bank or as a court plus such non-Defaulting Bank’s Percentage of competent jurisdiction may otherwise direct.
(ii) Any amount paid by Swingline Advances does not exceed the Borrowers for the account Commitment of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Nonnon-Defaulting Bank;
(cii) The Borrowers may terminate if the unused amount of reallocation described in clause (i) above cannot, or can only partially, be effected, the Commitment of a Defaulting Bank upon not less than three (3) Borrower shall within one Business Days’ prior Day following notice by the Agent prepay such Swingline Advances to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will extent not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bankso reallocated; and
(d) so long as such Bank is a Defaulting Bank, the Swingline Bank shall not be required to fund any Swingline Advance unless 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 Swingline Advance shall be allocated among non-Defaulting Banks in a manner consistent with Section 6.7(c)(i) (and such Defaulting Bank shall not participate therein). If (i) a Bankruptcy Event with respect to a Parent of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, the Swingline Bank shall not be required to fund any Swingline Advance unless the Swingline Bank shall have entered into arrangements with the Borrower or such Bank, satisfactory to the Swingline Bank to defease any risk to it in respect of such Bank hereunder. In the event that the Borrowers Agent, the Borrower and the Agent agree in writing in their discretion Swingline Bank each agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify the parties hereto, whereupon as participations of the effective Banks in Swingline Advances shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding the Advances of the other Banks and/or make such (other adjustments than Bid Loans and Swingline Advances) as the Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Advances in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bankits Percentage.
Appears in 1 contract
Sources: Five Year Credit Agreement (3m Co)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Facility Fees shall cease to accrue on the unused amount of the Revolving Credit Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees2.07(a);
(ib) Any amount paid by the Borrowers Revolving Credit Commitment and Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether the Required Banks or any other requisite Banks have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.01); provided that any amendment, waiver or other modification requiring the consent of all Banks or all Banks affected thereby shall, except as otherwise received by provided in Section 10.01, require the Agent for consent of such Defaulting Bank in accordance with the account of terms hereof;
(c) if any LC Exposure exists at the time such Bank becomes a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to then:
(i) the LC Exposure of such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed than any portion thereof attributable to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject unreimbursed LC Disbursements with respect to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by which such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest shall have funded its participation as contemplated by Sections 2.03(d) and then current interest due and payable to the Non-Defaulting Banks, ratably 2.03(e)) shall be reallocated among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunderin accordance with their respective Proportional Shares but only to the extent that the sum of all Non-Defaulting Banks’ Revolving Credit Exposures plus such Defaulting Bank’s LC Exposure (excluding the portion thereof referred to above) does not exceed the sum of all Non-Defaulting Banks’ Revolving Credit Commitments;
(ii) if the reallocation described in clause (i) above cannot, ratably among them or can only partially, be effected, the Company shall within one Business Day following notice by the Administrative Agent, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Bank’s LC Exposure (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated, in accordance with the amounts procedures set forth in Section 2.03(j), for so long as such LC Exposure is outstanding;
(iii) if the Company cash collateralizes any portion of such Defaulting Bank’s LC Exposure pursuant to clause (ii) above, the Company shall not be required to pay participation fees to such Defaulting Bank pursuant to Section 2.07(b) with respect to such portion of such Defaulting Bank’s LC Exposure for so long as such Defaulting Bank’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Bank is reallocated pursuant to clause (i) above, then due and the participation fees payable to themthe Banks pursuant to Section 2.07(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Bank’s LC Exposure (other than any portion thereof referred to in the parenthetical in clause (i) above) is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, fourth then, without prejudice to any rights or remedies of any Issuing Bank or any other Bank hereunder, all participation fees payable under Section 2.07(b) with respect to such Defaulting Bank’s LC Exposure shall be payable to the ratable payment Issuing Banks (and allocated among them ratably based on the amount of other amounts such Defaulting Bank’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(vi) so long as such Bank is a Defaulting Bank, no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit unless it is satisfied that the related exposure and the Defaulting Bank’s then due and payable to outstanding LC Exposure will be fully covered by the Revolving Credit Commitments of the Non-Defaulting BanksBanks and/or cash collateral provided by the Company in accordance with Section 2.03(j), and fifth after participating interests in any such issued, amended, renewed or extended Letter of Credit will be allocated among the termination of the Commitments Non-Defaulting Banks in a manner consistent with Section 2.14(c)(i) (and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereofparticipate therein), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) . In the event that the Borrowers Administrative Agent, the Company and the Agent each Issuing Bank each agree in writing in their discretion that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify the parties hereto, whereupon as LC Exposures of the effective Banks shall be readjusted to reflect the inclusion of such Bank’s Revolving Credit Commitment and on such date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Loans of the other Banks and/or make such (other adjustments than Competitive Loans) as the Administrative Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Loans in accordance with their respective Commitments, whereupon such Bank will cease its Proportional Share. Subject to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected partiesSection 10.19, no change reallocation hereunder from Defaulting Bank to Non-Defaulting Bank will shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Bank arising from such Bank’s that Bank having been 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.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Revolving Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Revolving Bank is a Defaulting Bank:
(a) Such facility fees shall cease to accrue on the Revolving Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees2.09(a);
(ib) Any amount paid by the Borrowers any payment of principal, interest, fees or otherwise other amounts received by the Administrative Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesvoluntary or mandatory, indemnity payments at maturity, or other amounts not constituting principal otherwise) or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained received by the Administrative Agent in from a segregated non-interest bearing account until (subject Defaulting Bank pursuant to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will 9.04 shall be applied at such time or times as may be determined by the AgentAdministrative Agent as follows: first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to any Issuing Bank or Swingline Bank hereunder; third, to cash collateralize LC Exposure with respect to such Defaulting Bank in accordance with this Section; fourth, as the Co-Borrowers may request (so long as no Default or Event ACTIVE 221393034 of Default exists), to the funding of any Loan 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; fifth, if so determined by the Administrative Agent and the Co‑Borrowers, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Bank’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize future LC Exposure with respect to such Defaulting Bank with respect to future Letters of Credit issued under this Agreement, second in accordance with this Section; sixth, to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Defaulting Banks, ratably among them in accordance with the amounts Issuing Banks or Swingline Bank as a result of any judgment of a court of competent jurisdiction obtained by any Bank, the Issuing Banks or Swingline Bank against such Defaulting Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement or under any other Loan Document; seventh, third so long as no Default or Event of Default exists, to the payment of fees then due and payable any amounts owing to the NonCo-Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Co-Borrowers against such Defaulting Banks hereunder, ratably among them in accordance with the amounts Bank as a result of such fees then due and payable to them, fourth to the ratable payment Defaulting Bank’s breach of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all its obligations of the Borrowers hereunder, to pay amounts owing under this Agreement or under any other Loan Document; and eighth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursements in respect of which such Defaulting Bank has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Bank until such time as all Loans and funded and unfunded participations in the Co‑Borrowers’ obligations corresponding to such Defaulting Bank’s LC Exposure and Swingline Loans are held by the Banks pro rata in accordance with the Commitments without giving effect to clause (d) below. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto;
(c) the Commitment and Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether the Required Banks have taken or may otherwise direct.take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that this clause (c) 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;
(d) if any Swingline Exposure or LC Exposure exists at the time a Revolving Bank becomes a Defaulting Bank then:
(i) all or any part of such Swingline Exposure, Available Currency Exposure and LC Exposure of such Defaulting Bank (other than, in the case of a Defaulting Bank that is a Swingline Bank, the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Banks in accordance with their respective Applicable Percentages but only to the extent that such reallocation does not, as to any non-Defaulting Bank, cause such non-Defaulting Bank’s Revolving Credit Exposure to exceed its Revolving Commitment;
(ii) Any amount paid if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Co-Borrowers shall, jointly and several, within one Business Day following notice by the Borrowers Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize for the account benefit of a the Issuing Banks only the Co-Borrower’s obligations corresponding to such Defaulting Bank’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.17(j) for so long as such LC Exposure is outstanding; FOURTH AMENDED AND RESTATED CREDIT AGREEMENT, Page 80 ACTIVE 221393034
(iii) if the Co-Borrowers cash collateralize any portion of such Defaulting Bank’s LC Exposure pursuant to this clause (ii) above, the Co-Borrowers shall not be required to pay any fees to such Defaulting Bank representing principal pursuant to Section 2.13 (b) with respect to such Defaulting Bank’s LC Exposure during the period such Defaulting Bank’s LC Exposure is cash collateralized;
(iv) if the LC Exposure of the non-Defaulting Banks is reallocated pursuant to clause (i) above, then the fees payable to the Revolving Banks pursuant to Section 2.09(a) and Section 2.09(b) shall be adjusted in accordance with such non-Defaulting Banks’ Applicable Percentages; and
(v) if all or interest any portion of such Defaulting Bank’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the applicable Issuing Bank or any Revolving Bank hereunder, all facility fees that otherwise would have been payable to such Defaulting Bank shall be paid (solely with respect to the portion of such Defaulting Bank’s Revolving Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.09 with respect to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice ’s LC Exposure shall be payable to the Agent (which will promptly notify the Issuing Banks thereof), and in until such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting BankLC Exposure is reallocated and/or cash collateralized; and
(de) so long as such Revolving Bank is a Defaulting Bank, no Swingline Bank shall be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Bank’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Banks and/or cash collateral will be provided by the Co-Borrowers in accordance with this Section, and Swingline Exposure related to any newly made Swingline Loan or LC Exposure related to any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with this Section (and such Defaulting Bank shall not participate therein); and
(i) 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 or (ii) any Swingline Bank or Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations under one or more other agreements in which such Bank commits to extend credit, no Swingline Bank shall be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Swingline Bank or the Issuing Banks, as the case may be, shall have entered into arrangements with Carlisle or such Bank, satisfactory to such Swingline Bank or Issuing Bank, as the case may be, to defease any risk to it in respect of such Bank hereunder. In the event that each of the Borrowers Administrative Agent, Carlisle, each Swingline Bank and the Agent agree in writing in their discretion each Issuing Bank agrees that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Agent will so notify the parties hereto, whereupon as Swingline Exposure and LC Exposure of the effective Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Loans of the other Banks and/or make such (other adjustments than Money Market Loans and Swingline Loans) as the Administrative Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Loans in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bankits Applicable Percentage.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, Bank then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent No Ticking Fee shall accrue for the account of a Defaulting Bank under this Agreement so long as such Bank shall be a Defaulting Bank.
(b) The Total Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 11.01) which requires Majority Banks consent.
(c) [Reserved.]
(d) [Reserved.]
(e) [Reserved.]
(f) [Reserved.]
(g) [Reserved.]
(h) Any payment of principal, interest, fees or other than any amounts representing principal or interest payable to received by the Administrative Agent hereunder for the account of such Defaulting Bank (whether on account of feesvoluntary or mandatory, indemnity payments at maturity, pursuant to Article IX or other amounts not constituting principal otherwise) or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained received by the Administrative Agent in from a segregated non-interest bearing account until (subject Defaulting Bank pursuant to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will 11.05 shall be applied at such time or times as may be determined by the AgentAdministrative Agent as follows: first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Event of Default or Unmatured Event of Default exists), to the funding of any Advance in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement; third, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Bank’s potential future funding obligations with respect to Advances under this Agreement; fourth, second to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank against such Defaulting Banks, ratably among them in accordance with the amounts Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement; fifth, third so long as no Event of Default or Unmatured Event of Default exists, to the payment of fees then due and payable any amounts owing to the Non-Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Banks hereunder, ratably among them in accordance with the amounts Bank as a result of such fees then due and payable to them, fourth to the ratable payment Defaulting Bank’s breach of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all its obligations of the Borrowers hereunder, to pay amounts owing under this Agreement Agreement; and sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise direct.
jurisdiction; provided that (iix) Any if such payment is a payment of the principal amount paid of any Advances in respect of which such Defaulting Bank has not fully funded its proportionate share, and (y) such Advances were made at a time when the conditions set forth in Section 6.02 were satisfied or waived, such payment shall be applied solely to pay the Advances of all non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Advances of such Defaulting Bank until such time as all Advances are held by the Borrowers for Banks pro rata in accordance with the account of Commitments. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank representing principal that are applied (or interest payable held) to such pay amounts owed by a Defaulting Bank shall be deemed paid to and redirected by such Defaulting Bank, and each Bank in irrevocably consents hereto.
(i) In the same amounts event that the Administrative Agent and in the same manner as if such Borrower agree that a Defaulting Bank were has adequately remedied all matters that caused such Bank to be a Non-Defaulting Bank;, then on such date such Bank shall purchase at par such of the Advances of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Advances in accordance with its Applicable Percentage.
(cj) The Borrowers Borrower may terminate the unused amount of the Commitment of any Bank that is a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Administrative Agent (which will shall promptly notify the Banks thereof); provided that (i) no Event of Default shall have occurred and be continuing, and in such event the provisions of Section 2.18(b(ii) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will shall not be deemed to be a waiver or release of any claim any the Borrower, the Administrative Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 1 contract
Defaulting Banks. Notwithstanding (a) If any provision Letters of this Agreement to Credit are outstanding at the contrary, if any time a Bank becomes a Defaulting Bank, then and the following provisions shall apply for Commitments have not been terminated in accordance with Section 8.01, then:
(i) so long as no Default has occurred and is continuing, all or any part of the participations in outstanding Letters of Credit shall be reallocated among the Banks that are Non-Defaulting Banks in accordance with their respective Applicable Percentages (disregarding any Defaulting Bank's Commitment) but only to the extent that the sum of (A) the aggregate principal amount of all Advances made by the Non-Defaulting Banks (in their capacity as Banks) and outstanding at such time, plus (B) the Non-Defaulting Banks' aggregate LC Exposures, plus (C) such Defaulting Bank's LC Exposure, does not exceed the total of all Non-Defaulting Banks' Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by any Issuing Bank, cash collateralize such Defaulting Bank's LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) by paying cash collateral to such Issuing Bank; provided that, so long as no Default is continuing, such cash collateral shall be released promptly upon the earliest of (A) the reallocation of the LC Exposure of the Defaulting Bank to Non-Defaulting Banks in accordance with clause (i) above, (B) a reduction in the outstanding amount available to be drawn under all outstanding Letters of Credit to zero, (C) the termination of the Defaulting Bank status of the applicable Bank, (D) such Issuing Bank's good faith determination that there exists excess cash collateral (in which case, an amount equal to such excess cash collateral shall be released) or (E) the posting of cash collateral for the amount of a Defaulting Bank as contemplated by Section 2.07(g). In the event any Letter of Credit or a portion thereof is collateralized, no fees shall be payable by the Company on the collateralized amount of such Letter of Credit or a portion thereof;
(iii) to the extent the Applicable Percentages of Letters of Credit of the Non-Defaulting Banks are reallocated pursuant to this Section 2.07(a), then the fees payable to the Banks pursuant to Section 4.01(b)(i) shall be adjusted in accordance with the Non-Defaulting Banks' Applicable Percentages of Letters of Credit as reallocated; or
(iv) to the extent any Defaulting Bank's Applicable Percentage of Letters of Credit is neither cash collateralized nor reallocated pursuant to Section 2.07(a), then, without prejudice to any rights or remedies of any Issuing Bank or any Bank hereunder, all letter of credit fees payable under Section 4.01(b)(i) with respect to such Defaulting Bank's Applicable Percentage of Letters of Credit that has not been reallocated or collateralized shall be payable to the applicable Issuing Bank until such Defaulting Bank's Applicable Percentage of Letters of Credit has been fully cash collateralized and/or reallocated.
(b) So long as any Bank is a Defaulting Bank:
(a) Such Defaulting , no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to 100% covered by the rights Commitments of the Non-Defaulting Banks other than and/or cash collateral will be provided by the Company in accordance with Section 2.07(a) or provided in accordance with Section 2.07(g), and participating interests in any such newly issued, amended or increased Letter of Credit shall be allocated among Non-Defaulting Banks in respect of such feesa manner consistent with Section 2.07(a)(i) (and Defaulting Banks shall not participate therein);.
(ic) Any amount paid No Commitment of any Bank shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.07, performance by the Borrowers Company of its obligations shall not be excused or otherwise received by modified as a result of the Agent for the account operation of this Section 2.07. The rights and remedies against a Defaulting Bank under this Agreement Section 2.07 are in addition to any other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesrights and remedies which the Company, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Issuing Bank may have against such Defaulting Bank; and.
(d) In [Reserved].
(e) [Reserved].
(f) If the event that Company, the Borrowers Administrative Agent and the Agent each Issuing Bank agree in writing in their discretion reasonable determination that a Defaulting Bank is should no longer be deemed to be a Defaulting Bank, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)cash collateral), such that Bank will, to the extent applicable, purchase purchase, at par such par, that portion of outstanding Advances of the other Banks and/or make or take such other adjustments actions as the Administrative Agent may determine to be necessary to cause the Revolving Advances and funded and unfunded participations in Letters of Credit Obligations of the Banks to be held on a pro rata basis by the Banks in accordance with their respective CommitmentsApplicable Percentages (without giving effect to Section 2.07(a)), whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Company while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s 's having been a Defaulting Bank.
(g) Notwithstanding anything to the contrary contained in this Agreement, any payment of principal, interest, commitment fees, Letter of Credit commissions or other amounts received by the Administrative Agent for the account of any Defaulting Bank under this Agreement (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to any Issuing Bank hereunder; third, as the Company may request (so long as no Default exists), to the funding of any Advance in respect of which that Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, as the Company may request, to be held in a cash collateral account to cash collateralize such Defaulting Bank's participations in Letters of Credit that are then outstanding; fifth, if so determined by the Administrative Agent and the Company, to be held in a cash collateral account and released in order to satisfy obligations of such Defaulting Bank to fund Advances under this Agreement; sixth, if so determined by the Administrative Agent and the Company, to be held in a cash collateral account to cash collateralize such Defaulting Bank's participations in Letters of Credit, seventh, to the payment of any amounts owing to the Banks or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank or Issuing Bank against such Defaulting Bank as a result of such Defaulting Bank's breach of its obligations under this Agreement; eighth, so long as no Default exists, to the payment of any amounts owing to the Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting Bank as a result of such Defaulting Bank's breach of its obligations under this Agreement; and ninth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Advance in respect of which such Defaulting Bank has not fully funded its appropriate share, and (y) such Advances were made or the related Letters of Credit were issued at a time when the applicable conditions set forth in Article V were satisfied or waived, such payment shall be applied solely to pay the Advances of all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Advances of such Defaulting Bank and provided further that any amounts held as cash collateral for funding obligations of a Defaulting Bank shall be returned to such Defaulting Bank upon the termination of this Agreement and the satisfaction of such Defaulting Bank's obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section 2.07 shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
(h) The Commitment, Revolving Credit Exposure and LC Exposure of any Defaulting Bank shall not be included in determining whether the Majority Banks or any other requisite Banks have taken or may take any action hereunder or under any Note (including any consent to any amendment, waiver or other modification pursuant to Section 10.01); provided that any amendment, waiver or other modification requiring the consent of all Banks or all Banks affected thereby shall, except as otherwise provided in Section 10.01, require the consent of such Defaulting Bank in accordance with the terms hereof.
Appears in 1 contract
Sources: Revolving Credit and Letter of Credit Agreement (Cigna Corp)
Defaulting Banks. Notwithstanding any provision of in this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Undrawn Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank;
(b) such Defaulting Bank will not be entitled shall have no voting or consent rights with respect to matters under the Credit Documents solely except to the extent any fees accruing during such period proposed amendment or waiver (i) increases or decreases the Commitment of any Bank (except for a ratable decrease in the Commitments of all Banks and except pursuant to Section 2.04 13.5(c)), (without prejudice ii) forgives or reduces the principal of or rate of interest on any Accommodation or any fees hereunder (other than Undrawn Fees), (iii) postpones the date fixed for any payment of Accommodations Outstanding or interest on any Accommodation or any fees hereunder (other than Undrawn Fees) or for any termination of any Commitment, (iv) changes the percentage of the Commitments or of the aggregate unpaid amount of the Accommodations Outstanding, or the number of Banks which shall be required for the Banks or any of them to take any action under Section 13.4 or any other provision of this Agreement, (v) amends the definition of “Required Banks,” (vi) amends, modifies or waives any provision of Section 13.4, (vii) extends the Commitment Termination Date, (viii) amends or waives any provisions in Section 5.2 or 5.8, or (ix) consents to any release or termination of the HMC Support Agreement. Accordingly, subject to the rights of previous sentence, the Banks other than Defaulting Banks in respect Commitments and Accommodations Outstanding of such feesDefaulting Bank shall not be included in determining whether all Banks or the Required Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 13.4);
(ic) Any amount paid to the extent permitted by law, the Borrowers Administrative Agent shall be entitled to withhold and deposit in one or otherwise more non-interest bearing accounts in the name of the Administrative Agent any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesvoluntary or mandatory, indemnity at maturity, pursuant to Section 11 or otherwise), which payments shall be applied at such time or other amounts not constituting principal or interest) will not times as may be paid or distributed to such Defaulting Bank, but will instead be retained determined by the Administrative Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agentas follows: first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent in such capacity hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Accommodation in respect of which that Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; and third, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released in order to satisfy obligations of such Defaulting Bank to fund future Accommodations under this Agreement; provided that if such payment is a payment of the principal amount of any Accommodations in respect of which such Defaulting Bank has not fully funded its appropriate share, second such payment shall be applied solely to pay the Accommodations Outstanding owed to all non-Defaulting Banks on a rateable basis prior to being applied to the payment of post-default interest and then current interest due and payable any Accommodations Outstanding to any Defaulting Bank until such time as all Accommodations are held by the Non-Defaulting Banks, ratably among them Banks rateably in accordance with the Banks’ Commitments. Any payments, prepayments or other amounts of such interest then due and paid or payable to thema Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank shall be deemed paid to and redirected by such Defaulting Bank, third and each Bank irrevocably consents thereto;
(d) for greater certainty, neither the Administrative Agent nor any of its Affiliates nor any of their respective directors, officers, employees, managers, administrators, trustees, agents, advisors and representatives shall be liable to any Bank (including a Defaulting Bank) for any action taken or omitted to be taken by it in connection with amounts received and deposited by the payment of fees then due Administrative Agent in any account pursuant to this Section 2.11 and payable to the Non-Defaulting Banks hereunder, ratably among them applied in accordance with the amounts provisions of such fees then due this Agreement, save and payable to them, fourth to except for the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination gross negligence or wilful misconduct of the Commitments Administrative Agent as determined by a final and payment in full non-appealable judgment of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bankjurisdiction;
(ce) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers Administrative Agent and the Agent agree Borrower each agrees in writing in their discretion that a Defaulting Bank is no longer has adequately remedied all matters that caused such Bank to be a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, shall purchase at par such portion of outstanding Advances the Accommodations Outstanding of the other Banks and/or make such other adjustments as the Administrative Agent shall determine may determine to be necessary in order for such Bank to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis hold such Accommodations Outstanding in accordance with their respective Commitments, its rateable share whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no . No adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Borrower while such the Bank was a Defaulting Bank; and provided, further, that except . Except to the extent otherwise expressly agreed to by the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such that Bank’s having been a Defaulting Bank.
Appears in 1 contract
Defaulting Banks. Notwithstanding (a) In the event that, at any provision one time, (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Amount to any Agent or any of this Agreement the other Banks and (iii) any Account Party shall make any payment hereunder or under any other Loan Document to the contrary, if any Bank becomes a Administrative Agent for the account of such Defaulting Bank, then the following provisions shall Administrative Agent may, on its behalf or on behalf of such other Banks and to the fullest extent permitted by applicable law, apply at such time the amount so paid by such Account Party to or for so long as the account of such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights payment of each such Defaulted Amount to the Banks extent required to pay such Defaulted Amount. In the event that the Administrative Agent shall so apply any such amount to the payment of any such Defaulted Amount on any date, the amount so applied by the Administrative Agent shall constitute for all purposes of this Agreement and the other than Defaulting Banks in respect Loan Documents payment, to such extent, of such fees);Defaulted Amount on such date. Any such amount so applied by the Administrative Agent shall be retained by the Administrative Agent or distributed by the Administrative Agent to such other Banks, ratably in accordance with the respective portions of such Defaulted Amounts payable at such time to the Administrative Agent and such other Banks and, if the amount of such payment made by such Account Party shall at such time be insufficient to pay all Defaulted Amounts owing at such time to the Administrative Agent, such other Agents and such other Banks, in the following order of priority:
(i) first, to the Agents for any Defaulted Amounts then owing to the Agents;
(ii) second, to the Issuing Bank for any amount then due and payable to it, in its capacity as such, by such Defaulting Bank, ratably in accordance with such amounts then due and payable to the Issuing Bank; and
(iii) third, to any other Banks for any Defaulted Amounts then owing to such other Banks, ratably in accordance with such respective Defaulted Amounts then owing to such other Banks. Any portion of such amount paid by the Borrowers or otherwise received by the Agent such Account Party for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank remaining, after giving effect to the amount applied by the Administrative Agent pursuant to this subsection (whether on a), shall be applied by the Administrative Agent as specified in subsection (b) of this Section 2.11.
(b) In the event that, at any one time, (i) any Bank shall be a Defaulting Bank, (ii) such Defaulting Bank shall not owe a Defaulted Amount and (iii) any Account Party, any Agent or other Bank shall be required to pay or distribute any amount hereunder or under any other Loan Document to or for the account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead then such Account Party or such Agent or such other Bank shall pay such amount to the Administrative Agent to be retained held by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by applicable law, in escrow and the Administrative Agent shall, to the making fullest extent permitted by applicable law, hold in escrow such amount otherwise held by it. Any funds held by the Administrative Agent in escrow under this subsection (b) shall be deposited by the Administrative Agent in an account with First Union in the name and under the control of payments the Administrative Agent, but subject to the provisions of this subsection (b). The terms applicable to such account, including the rate of interest payable with respect to the credit balance of such account from time to time, shall be First Union's standard terms applicable to escrow accounts maintained with it. Any interest credited to such account from time to time shall be held by the Administrative Agent in escrow under, and applied by the Administrative Agent from time to time in accordance with the provisions of, this subsection (b). The Administrative Agent shall, to the fullest extent permitted by applicable law, apply all funds so held in escrow from time to time to the extent necessary to make any Advances required to be made by such Defaulting Bank and to pay any amount payable by such Defaulting Bank hereunder and under the other Loan Documents to the Administrative Agent or any other Bank, as and when such Advances or amounts are required to be made or paid and, if the amount so held in escrow shall at any time be insufficient to make and pay all such Advances and amounts required to be made or paid at such time, in the following order of priority: first :
(i) first, to the payment of Agents for any amounts owing then due and payable by such Defaulting Bank to the Agent under this AgreementAgents hereunder;
(ii) second, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest Issuing Bank for any amount then due and payable to themit, third to the payment of fees then due and payable to the Non-in its capacity as such, by such Defaulting Banks hereunderBank, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-such Issuing Bank; and
(iii) third, to any other Banks for any amount then due and payable by such Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers Bank to such other Banks hereunder, ratably in accordance with such respective amounts then due and payable to pay amounts such other Banks. In the event that any Bank that is a Defaulting Bank shall, at any time, cease to be a Defaulting Bank, any funds held by the Administrative Agent in escrow at such time with respect to such Bank shall be distributed by the Administrative Agent to such Bank and applied by such Bank to the Obligations owing to such Bank at such time under this Agreement to and the other Loan Documents ratably in accordance with the respective amounts of such Defaulting Bank or as a court of competent jurisdiction may otherwise directObligations outstanding at such time.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of rights and remedies against a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or Section 2.11 are in addition to other amounts), provided rights and remedies that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting BankDefaulted Amount.
Appears in 1 contract
Sources: Reimbursement Agreement (Ace LTD)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long then, until such time as such Bank is no longer a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice , to the rights of the Banks other than Defaulting Banks in respect of such fees);extent permitted by applicable law:
(i) Such Defaulting Bank’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Majority Banks.
(ii) Any amount paid by the Borrowers payment of principal, interest, fees or otherwise other amounts received by the Administrative Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesvoluntary or mandatory, indemnity payments at maturity, pursuant to Section 7 or other amounts not constituting principal otherwise) or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained received by the Administrative Agent in from a segregated non-interest bearing account until (subject Defaulting Bank pursuant to Section 2.18(d)subsection 9.7(b) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will shall be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first as follows:
(A) FIRST to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder;
(B) SECOND as the Company may request (so long as no Default or Event of Default exists), to the funding of any Loan 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;
(C) THIRD if so determined by the Administrative Agent and the Company, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Bank’s potential future funding obligations with respect to Loans under this Agreement, second ;
(D) FOURTH to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank against such Defaulting Banks, ratably among them in accordance with the amounts Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement;
(E) FIFTH so long as no Default or Event of Default exists, third to the payment of fees then due and payable any amounts owing to the Non-Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting Banks hereunder, ratably among them in accordance with the amounts Bank as a result of such fees then due and payable to them, fourth to the ratable payment Defaulting Bank’s breach of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all its obligations of the Borrowers hereunder, to pay amounts owing under this Agreement Agreement; and
(F) SIXTH to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise direct.
jurisdiction; provided that if (iix) Any such payment is a payment of the principal amount paid of any Loans in respect of which such Defaulting Bank has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in subsection 4.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Bank until such time as all Loans are held by the Borrowers for Banks pro rata in accordance with the account of Commitments. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank representing principal that are applied (or interest payable held) to such pay amounts owed by a Defaulting Bank shall be deemed paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid redirected by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and, and each Bank irrevocably consents hereto.
(db) In If the event that the Borrowers Company and the Administrative Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b))therein, such that Bank will, to the extent applicable, purchase at par such that portion of outstanding Advances Loans of the other Banks and/or make or take such other adjustments actions as the Administrative Agent may determine to be necessary to cause the Revolving Credit Obligations of Loans to be held pro rata by the Banks to be on a pro rata basis in accordance with their respective the Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Company while such that Bank was a Defaulting Bank; and provided, further, provided further that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such that Bank’s having been a Defaulting Bank.
Appears in 1 contract
Defaulting Banks. (a) Notwithstanding any provision of this Agreement anything to the contrarycontrary contained in this Agreement, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long then, until such time as such Bank is no longer a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice , to the rights of the Banks other than Defaulting Banks in respect of such fees);extent permitted by applicable law:
(i) Such Defaulting Bank’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Majority Banks.
(ii) Any amount paid by the Borrowers payment of principal, interest, fees or otherwise other amounts received by the Administrative Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesvoluntary or mandatory, indemnity payments at maturity, pursuant to Section 7 or other amounts not constituting principal otherwise) or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained received by the Administrative Agent in from a segregated non-interest bearing account until (subject Defaulting Bank pursuant to Section 2.18(d)subsection 9.7(b) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will shall be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first as follows:
(A) FIRST to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder;
(B) SECOND to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to any Issuing ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇;
(C) THIRD to Cash Collateralize the Issuing Lenders’ Fronting Exposure with respect to such Defaulting Bank in accordance with subsection 2.26;
(D) FOURTH as the Company may request (so long as no Default or Event of Default exists), to the funding of any Loan 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;
(E) FIFTH if so determined by the Administrative Agent and the Company, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Bank’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the Issuing Lenders’ future Fronting Exposure with respect to such Defaulting Bank with respect to future Letters of Credit issued under this Agreement, second in accordance with subsection 2.26;
(F) SIXTH to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Defaulting Banks, ratably among them in accordance with the amounts Issuing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Bank or the Issuing Lenders against such Defaulting Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement;
(G) SEVENTH so long as no Default or Event of Default exists, third to the payment of fees then due and payable any amounts owing to the Non-Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting Banks hereunder, ratably among them in accordance with the amounts Bank as a result of such fees then due and payable to them, fourth to the ratable payment Defaulting Bank’s breach of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all its obligations of the Borrowers hereunder, to pay amounts owing under this Agreement Agreement; and
(H) EIGHTH to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise directjurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligation in respect of which such Defaulting Bank has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in subsection 4.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Bank until such time as all Loans and funded and unfunded participations in LOC Obligations are held by the Banks pro rata in accordance with the Revolving Credit Commitments without giving effect to subsection 2.24(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post Cash Collateral pursuant to this subsection 2.24(a)(ii) shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
(iiA) Any amount paid by the Borrowers Each Defaulting Bank shall be entitled to receive a facility fee for the account of any period during which such Bank is a Defaulting Bank representing only to the extent allocable to the sum of (1) the outstanding principal amount of the Loans funded by it, and (2) its Revolving Credit Commitment Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to subsection 2.26.
(B) Each Defaulting Bank shall be entitled to receive Letter of Credit Fees for any period during which such Bank is a Defaulting Bank only to the extent allocable to its Revolving Credit Commitment Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to subsection 2.26.
(C) With respect to any facility fee or interest Letter of Credit Fee not required to be paid to any Defaulting Bank pursuant to clause (A) or (B) above, the Company shall (x) pay to each Non-Defaulting Bank that portion of any such fee otherwise payable to such Defaulting Bank shall be paid with respect to such Defaulting Bank’s participation in LOC Obligations that has been reallocated to such Non-Defaulting Bank pursuant to subsection 2.24(a)(iv), (y) pay to each Issuing Lender the amount of any such fee otherwise payable to such Defaulting Bank to the extent allocable to such Issuing Lender’s Fronting Exposure to such Defaulting Bank, and (z) not be required to pay the remaining amount of any such fee.
(iv) All or any part of such Defaulting Bank’s participation in the same amounts Swing Line Loans and in LOC Obligations shall be reallocated among the same manner as if Non-Defaulting Banks in accordance with their respective Revolving Credit Commitment Percentages (calculated without regard to such Defaulting Bank’s Revolving Credit Commitment) but only to the extent that (x) the conditions set forth in subsection 4.2 are satisfied at the time of such reallocation (and, unless the Company shall have otherwise specifically notified the Administrative Agent, the Company shall be deemed to have represented and warranted that such conditions are satisfied at 65 such time), and (y) such reallocation does not cause the aggregate principal amount of the Loans and Participation Interests of any Non-Defaulting Bank were a to exceed such Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice ’s Revolving Credit Commitment. Subject to the Agent (which will promptly notify the Banks thereof)subsection 9.20, and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be no reallocation hereunder shall constitute a waiver or release of any claim of any Borrowerparty 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.
(v) If the reallocation described in subsection 2.24(a)(iv) cannot, or can only partially, be effected, the Agent Company shall, without prejudice to any right or any Bank may have against such Defaulting Bank; andremedy available to it hereunder or under law, (A) prepay in full all outstanding Swing Loans and (B) Cash Collateralize the Issuing Lenders’ Fronting Exposure in accordance with the procedures set forth in subsection 2.26.
(db) In If the event that Company, the Borrowers Administrative Agent, each Swing Line Bank and the Agent each Issuing Lender agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)Cash Collateral), such that Bank will, to the extent applicable, purchase at par such that portion of outstanding Advances Loans of the other Banks and/or make or take such other adjustments actions as the Administrative Agent may determine to be necessary to cause the Revolving Loans and funded and unfunded participations in Letters of Credit Obligations of to be held pro rata by the Banks to be on a pro rata basis in accordance with their respective Commitmentsthe Revolving Credit Commitments (without giving effect to subsection 2.24(a)(iv)), whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Company while such that Bank was a Defaulting Bank; and provided, further, provided further that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such that Bank’s having been a Defaulting Bank.
Appears in 1 contract
Sources: Credit Agreement (Western Union CO)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.interest
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 1 contract
Sources: Credit Agreement (Caterpillar Financial Services Corp)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement to the contrary, if one or more Banks become Defaulting Banks, then, upon notice to such effect by the Administrative Agent (which notice shall be given promptly after the Administrative Agent becomes aware that any Bank becomes shall have become a Defaulting Bank, then including as a result of being advised thereof by the Borrower), the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(ai) Such the Loans of each Defaulting Bank will not shall be entitled disregarded in determining whether the requisite Banks shall have taken any action hereunder or under any other Loan Document (including any consent to any fees accruing during such period waiver, amendment or other modification pursuant to Section 2.04 9.5); provided that any waiver, amendment, or other modification that, disregarding the effect of this clause (without prejudice i), requires the consent of each Bank directly and adversely affected thereby pursuant to clause (a), (b) or (c) of Section 9.5 shall continue to require the rights consent of each Defaulting Bank directly and adversely affected thereby in accordance with the Banks terms hereof; provided, further, that any waiver, amendment or other than modification of this Section 2.20(a)(i) or clause (a), (b) or (c) of Section 9.5 at any time that a Bank is a Defaulting Banks in respect Bank shall require the consent of such fees);Defaulting Bank if such Defaulting Bank would be directly adversely affected thereby; and
(iii) Any any amount paid by the Borrowers payable to or otherwise received by the Agent for the account of a any Defaulting Bank under this Agreement other than in its capacity as a Bank hereunder (whether on account of principal, interest or otherwise, and including any amounts representing principal or interest payable to such Defaulting Bank (whether on account pursuant to Section 2.11, but excluding any amounts payable to such Defaulting Bank pursuant to Sections 2.13, 2.15, 8.2 and 9.3) shall, in lieu of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or being distributed to such Defaulting Bank, but will instead be retained by the Administrative Agent in a segregated non-interest bearing account until (and, subject to Section 2.18(d)any applicable requirements of law, (A) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied applied, at such time or times as may be determined by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent under this Agreement, second hereunder and (B) to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banksextent not applied or held as aforesaid, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement be distributed to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise directjurisdiction.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(db) In the event that the Borrowers Administrative Agent and the Agent agree in writing in their discretion Borrower shall have agreed that a Bank that is no longer a Defaulting Bank has adequately remedied all matters that caused such Bank to become a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will shall cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bankfor all purposes hereof.
Appears in 1 contract
Defaulting Banks. Notwithstanding (a) If for any provision of this Agreement to the contrary, if reason any Bank becomes a Defaulting Bank, then in addition to the rights and remedies that may be available to the Administrative Agent and the Banks at law or in equity, the Defaulting Bank’s right to participate in the Loan and the Agreement will be suspended during the pendency of the Defaulting Bank’s uncured default, and (without limiting the foregoing) the Administrative Agent may (or at the direction of the Required Banks, shall) withhold from the Defaulting Bank any interest payments, fees, principal payments or other sums otherwise payable to such Defaulting Bank under the Loan Documents until such default of such Defaulting Bank has been cured. Each Non-Defaulting Bank will have the right, but not the obligation, in its sole discretion, to acquire at par a proportionate share (based on the ratio of its Pro Rata Share of the Commitment to the aggregate amount of the Pro Rata Shares of the Commitments of all of the Non-Defaulting Banks that elect to acquire a share of the Defaulting Bank’s Pro Rata Share of the Commitment) of the Defaulting Bank’s Pro Rata Share of the Commitment, including its proportionate share in the outstanding principal balance of the Loan. The Defaulting Bank will pay and protect, defend and indemnify the Administrative Agent and each of the other Banks against, and hold the Administrative Agent, and each of the other Banks harmless from, all claims, actions, proceedings, liabilities, damages, losses, and expenses (including Attorney Costs, and interest at the Base Rate plus 2.0% per annum for the funds advanced by the Administrative Agent or any Banks on account of the Defaulting Bank) they may sustain or incur by reason of or in consequence of the Defaulting Bank’s failure or refusal to perform its obligations under the Loan Documents. The Administrative Agent may set off against payments due to the Defaulting Bank for the claims of the Administrative Agent and the other Banks against the Defaulting Bank. The exercise of these remedies will not reduce, diminish or liquidate the Defaulting Bank’s Pro Rata Share of the Commitment (except to the extent that part or all of such Pro Rata Share of the Commitment is acquired by the other Banks as specified above) or its obligations to share losses and reimbursement for costs, liabilities and expenses under this Agreement. This indemnification will survive the payment and satisfaction of all of the Borrower’s obligations and liabilities to the Banks. The foregoing provisions of this Section 10.13 are solely for the benefit of the Administrative Agent and the Banks, and may not be enforced or relied upon by the Borrower.
(b) If a Bank becomes, and during the period it remains, a Defaulting Bank, the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent Borrower for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of principal, interest, fees, indemnity payments or other amounts not constituting principal or interestamounts) will not be paid or distributed to such Defaulting Bank, but will shall instead be retained by the Administrative Agent in a segregated non-interest bearing escrow account until (subject to Section 2.18(d)) such Defaulting Bank is no longer a Defaulting Bank or the termination of the Commitments and payment in full of all obligations of the Borrowers Borrower hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first First to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting BanksBanks hereunder, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers Borrower hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by , and sixth the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice remainder to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting BankPerson entitled thereto.
Appears in 1 contract
Sources: Term Loan Agreement (Kb Home)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 3.1;
(without prejudice to b) the rights of the Banks other than Defaulting Banks in respect Commitment and Outstanding Credit Exposure of such feesDefaulting Bank shall not be included in determining whether all Banks or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 9.4, provided that any waiver, amendment or modification requiring the consent of all Banks or each affected Bank which affects such Defaulting Bank differently than other affected Bank shall require the consent of such Defaulting Bank);
(ic) Any amount paid by if any Letter of Credit Obligations shall exist at the Borrowers or otherwise received by the Agent for the account of time a Bank becomes a Defaulting Bank then:
(1) all or any part of the unfunded participations in and commitments with respect to Letters of Credit shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro-Rata Shares but only to the extent (y) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure plus such Defaulting Bank’s Loans and participations in and commitments with respect to Loans and Letters of Credit does not exceed the total of all non-Defaulting Banks’ Commitments and (z) the conditions set forth in Section 4 are satisfied at such time; provided, that the Letter of Credit Fees payable to the Banks shall be determined taking into account such reallocation.
(2) if the reallocation described in clause (1) above cannot, or can only partially, be effected, the Borrower shall within three Business Days following notice by the Administrative Agent, cash collateralize such Defaulting Bank’s Pro- Rata Share of the Letter of Credit Obligations in accordance with the procedures set forth below for so long as such LC Exposure is outstanding;
(3) if the Borrower cash collateralizes any portion of such Defaulting Bank’s LC Exposure pursuant to clause (2) above, the Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.3(b) with respect to such Defaulting Bank’s LC Exposure during the period such Defaulting Bank’s LC Exposure is cash collateralized; and
(4) if any Defaulting Bank’s LC Exposure is not cash collateralized pursuant to clause (2) above, then, without prejudice to any rights or remedies of the Issuing Bank(s) or any Bank hereunder, all Letter of Credit Fees payable under this Agreement other than Section 2.2(b) with respect to such Defaulting Bank’s LC Exposure shall be payable to the Issuing Bank(s) until such LC Exposure is cash collateralized;
(d) so long as any amounts representing principal Bank is a Defaulting Bank, the Issuing Bank(s) shall not be required to issue or interest modify any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by cash collateral provided by the Borrower in accordance with Section 3.8(c); and
(e) any amount payable to such Defaulting Bank hereunder (whether on account of feesprincipal, indemnity payments interest, fees or other amounts not constituting principal or interestotherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 2.18(b)) will not be paid or shall, in lieu of being distributed to such Defaulting Bank, but will instead be retained by the Administrative Agent in a segregated non-interest bearing account until (and, subject to Section 2.18(d)) the termination any applicable requirements of the Commitments and payment in full of all obligations of the Borrowers hereunder and will law, be applied at such time or times as may be determined by the AgentAdministrative Agent (i) first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Bank(s), (iii) third, to the funding of any Revolving Credit Loan or the funding or cash collateralization of any participating interest in any Letter of Credit 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, (iv) fourth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Bank under this Agreement, second (v) fifth, to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Borrower or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Borrower or any Bank against such Defaulting Banks, ratably among them in accordance with the amounts Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement, third (vi) sixth, if so determined by the Administrative Agent, distributed to the payment Banks other than the Defaulting Bank until the ratio of fees then due and payable the Outstanding Credit Exposure of such Banks to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of Aggregate Outstanding Credit Exposure equals such fees then due and payable to them, fourth ratio immediately prior to the ratable payment Defaulting Bank’s failure to fund any portion of other amounts then due any Loans or participations in Letters of Credit and payable to the Non-Defaulting Banks(vii) seventh, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as jurisdiction; provided, that if such Defaulting Bank were payment is a Non-Defaulting Bank;
(c) The Borrowers may terminate prepayment of the unused principal amount of the Commitment any Loans or Reimbursement Obligations in respect of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions draws under Letters of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements Credit with respect to any amounts then held in which the segregated account referred to in Section 2.18(b))applicable Issuing Bank has funded its participation obligations, such Bank willpayment shall be applied solely to prepay the Loans of, and Reimbursement Obligations owed to, all Banks that are not Defaulting Banks pro rata prior to being applied to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release prepayment of any claim of Loans, or Reimbursement Obligations owed to, any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 1 contract
Sources: Credit Agreement (Cerner Corp /Mo/)
Defaulting Banks. Notwithstanding (a) If any provision Letters of this Agreement to Credit are outstanding at the contrary, if any time a Bank becomes a Defaulting Bank, then and the following provisions shall apply for Commitments have not been terminated in accordance with Section 8.01, then:
(i) so long as no Default has occurred and is continuing, all or any part of the participations in outstanding Letters of Credit shall be reallocated among the Banks that are Non-Defaulting Banks in accordance with their respective Applicable Percentages (disregarding any Defaulting Bank's Commitment) but only to the extent that the sum of (A) the aggregate principal amount of all Advances made by the Non-Defaulting Banks (in their capacity as Banks) and outstanding at such time, plus (B) the Non-Defaulting Banks' aggregate LC Exposures, plus (C) such Defaulting Bank's LC Exposure, does not exceed the total of all Non-Defaulting Banks' Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company shall within one Business Day following notice by any Issuing Bank, cash collateralize such Defaulting Bank's LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) by paying cash collateral to such Issuing Bank; provided that, so long as no Default is continuing, such cash collateral shall be released promptly upon the earliest of (A) the reallocation of the LC Exposure of the Defaulting Bank to Non-Defaulting Banks in accordance with clause (i) above, (B) a reduction in the outstanding amount available to be drawn under all outstanding Letters of Credit to zero, (C) the termination of the Defaulting Bank status of the applicable Bank, (D) such Issuing Bank's good faith determination that there exists excess cash collateral (in which case, an amount equal to such excess cash collateral shall be released) or (E) the posting of cash collateral for the amount of a Defaulting Bank as contemplated by Section 2.07(g). In the event any Letter of Credit or a portion thereof is collateralized, no fees shall be payable by the Company on the collateralized amount of such Letter of Credit or a portion thereof;
(iii) to the extent the Applicable Percentages of Letters of Credit of the Non-Defaulting Banks are reallocated pursuant to this Section 2.07(a), then the fees payable to the Banks pursuant to Section 4.01(b)(i) shall be adjusted in accordance with the Non-Defaulting Banks' Applicable Percentages of Letters of Credit as reallocated; or
(iv) to the extent any Defaulting Bank's Applicable Percentage of Letters of Credit is neither cash collateralized nor reallocated pursuant to Section 2.07(a), then, without prejudice to any rights or remedies of any Issuing Bank or any Bank hereunder, all letter of credit fees payable under Section 4.01(b)(i) with respect to such Defaulting Bank's Applicable Percentage of Letters of Credit that has not been reallocated or collateralized shall be payable to the applicable Issuing Bank until such Defaulting Bank's Applicable Percentage of Letters of Credit has been fully cash collateralized and/or reallocated.
(b) So long as any Bank is a Defaulting Bank:
(a) Such Defaulting , no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to 100% covered by the rights Commitments of the Non-Defaulting Banks other than and/or cash collateral will be provided by the Company in accordance with Section 2.07(a) or provided in accordance with Section 2.07(g), and participating interests in any such newly issued, amended or increased Letter of Credit shall be allocated among Non-Defaulting Banks in respect of such feesa manner consistent with Section 2.07(a)(i) (and Defaulting Banks shall not participate therein);.
(ic) Any amount paid No Commitment of any Bank shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.07, performance by the Borrowers Company of its obligations shall not be excused or otherwise received by modified as a result of the Agent for the account operation of this Section 2.07. The rights and remedies against a Defaulting Bank under this Agreement Section 2.07 are in addition to any other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesrights and remedies which the Company, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Issuing Bank may have against such Defaulting Bank; and.
(d) In [Reserved].
(e) [Reserved].
(f) If the event that Company, the Borrowers Administrative Agent and the Agent each Issuing Bank agree in writing in their discretion reasonable determination that a Defaulting Bank is should no longer be deemed to be a Defaulting Bank, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)cash collateral), such that Bank will, to the extent applicable, purchase purchase, at par such par, that portion of outstanding Advances of the other Banks and/or make or take such other adjustments actions as the Administrative Agent may determine to be necessary to cause the Revolving Advances and funded and unfunded participations in Letters of Credit Obligations of the Banks to be held on a pro rata basis by the Banks in accordance with their respective CommitmentsApplicable Percentages (without giving effect to Section 2.07(a)), whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers Company while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s 's having been a Defaulting Bank.
(g) Notwithstanding anything to the contrary contained in this Agreement, any payment of principal, interest, commitment fees, Letter of Credit commissions or other amounts received by the Administrative Agent for the account of any Defaulting Bank under this Agreement (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to any Issuing Bank hereunder; third, as the Company may request (so long as no Default exists), to the funding of any Advance in respect of which that Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, as the Company may request, to be held in a cash collateral account to cash collateralize such Defaulting Bank's participations in Letters of Credit that are then outstanding; fifth, if so determined by the Administrative Agent and the Company, to be held in a cash collateral account and released in order to satisfy obligations of such Defaulting Bank to fund Advances under this Agreement; sixth, if so determined by the Administrative Agent and the Company, to be held in a cash collateral account to cash collateralize such Defaulting Bank's participations in Letters of Credit, seventh, to the payment of any amounts owing to the Banks or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Bank or Issuing Bank against such Defaulting Bank as a result of such Defaulting Bank's breach of its obligations under this Agreement; eighth, so long as no Default exists, to the payment of any amounts owing to the Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against such Defaulting Bank as a result of such Defaulting Bank's breach of its obligations under this Agreement; and ninth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Advance in respect of which such Defaulting Bank has not fully funded its appropriate share, and (y) such Advances were made or the related Letters of Credit were issued at a time when the applicable conditions set forth in Article V were satisfied or waived, such payment shall be applied solely to pay the Advances of all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Advances of such Defaulting Bank and provided further that any amounts held as cash collateral for funding obligations of a Defaulting Bank shall be returned to such Defaulting Bank upon the termination of this Agreement and the satisfaction of such Defaulting Bank's obligations hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section 2.07 shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
(h) The Commitment, Revolving Credit Exposure and LC Exposure of any Defaulting Bank shall not be included in determining whether the Majority Banks or any other requisite Banks have taken or may take any action hereunder or under any Note (including any consent to any amendment, waiver or other modification pursuant to Section 10.01) except as set forth in Section 10.01.
Appears in 1 contract
Sources: Revolving Credit and Letter of Credit Agreement (Cigna Corp)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 3.1;
(without prejudice to b) the rights of the Banks other than Defaulting Banks in respect Commitment and Outstanding Credit Exposure of such feesDefaulting Bank shall not be included in determining whether all Banks or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 9.4, provided that any waiver, amendment or modification requiring the consent of all Banks or each affected Bank which affects such Defaulting Bank differently than other affected Bank shall require the consent of such Defaulting Bank);
(ic) Any amount paid by if any Letter of Credit Obligations shall exist at the Borrowers or otherwise received by the Agent for the account of time a Bank becomes a Defaulting Bank then:
(1) all or any part of the unfunded participations in and commitments with respect to Letters of Credit shall be reallocated among the non-Defaulting Banks in accordance with their respective Pro-Rata Shares but only to the extent (y) the sum of all non-Defaulting Banks’ Outstanding Credit Exposure plus such Defaulting Bank’s Loans and participations in and commitments with respect to Loans and Letters of Credit does not exceed the total of all non-Defaulting Banks’ Commitments and (z) the conditions set forth in Section 4 are satisfied at such time; provided, that the Letter of Credit Fees payable to the Banks shall be determined taking into account such reallocation.
(2) if the reallocation described in clause (1) above cannot, or can only partially, be effected, the Borrower shall within three Business Days following notice by the Administrative Agent, cash collateralize such Defaulting Bank’s Pro-Rata Share of the Letter of Credit Obligations in accordance with the procedures set forth below for so long as such LC Exposure is outstanding;
(3) if the Borrower cash collateralizes any portion of such Defaulting Bank’s LC Exposure pursuant to clause (2) above, the Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.3(b) with respect to such Defaulting Bank’s LC Exposure during the period such Defaulting Bank’s LC Exposure is cash collateralized; and
(4) if any Defaulting Bank’s LC Exposure is not cash collateralized pursuant to clause (2) above, then, without prejudice to any rights or remedies of the Issuing Bank(s) or any Bank hereunder, all Letter of Credit Fees payable under this Agreement other than Section 2.2(b) with respect to such Defaulting Bank’s LC Exposure shall be payable to the Issuing Bank(s) until such LC Exposure is cash collateralized; Subject to Section 3.11, no reallocation hereunder shall constitute a waiver or release of any amounts representing principal 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.
(d) so long as any Bank is a Defaulting Bank, the Issuing Bank(s) shall not be required to issue or interest modify any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by cash collateral provided by the Borrower in accordance with Section 3.8(c); and
(e) any amount payable to such Defaulting Bank hereunder (whether on account of feesprincipal, indemnity payments interest, fees or other amounts not constituting principal or interestotherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 2.18(b)) will not be paid or shall, in lieu of being distributed to such Defaulting Bank, but will instead be retained by the Administrative Agent in a segregated non-interest bearing account until (and, subject to Section 2.18(d)) the termination any applicable requirements of the Commitments and payment in full of all obligations of the Borrowers hereunder and will law, be applied at such time or times as may be determined by the AgentAdministrative Agent (i) first, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, (ii) second, to the payment of any amounts owing by such Defaulting Bank to the Issuing Bank(s), (iii) third, to the funding of any Revolving Credit Loan or the funding or cash collateralization of any participating interest in any Letter of Credit 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, (iv) fourth, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Bank under this Agreement, second (v) fifth, to the payment of post-default interest and then current interest due and payable any amounts owing to the Non-Borrower or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Borrower or any Bank against such Defaulting Banks, ratably among them in accordance with the amounts Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement, third (vi) sixth, if so determined by the Administrative Agent, distributed to the payment Banks other than the Defaulting Bank until the ratio of fees then due and payable the Outstanding Credit Exposure of such Banks to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of Aggregate Outstanding Credit Exposure equals such fees then due and payable to them, fourth ratio immediately prior to the ratable payment Defaulting Bank’s failure to fund any portion of other amounts then due any Loans or participations in Letters of Credit and payable to the Non-Defaulting Banks(vii) seventh, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as jurisdiction; provided, that if such Defaulting Bank were payment is a Non-Defaulting Bank;
(c) The Borrowers may terminate prepayment of the unused principal amount of the Commitment any Loans or Reimbursement Obligations in respect of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions draws under Letters of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements Credit with respect to any amounts then held in which the segregated account referred to in Section 2.18(b))applicable Issuing Bank has funded its participation obligations, such Bank willpayment shall be applied solely to prepay the Loans of, and Reimbursement Obligations owed to, all Banks that are not Defaulting Banks pro rata prior to being applied to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release prepayment of any claim of Loans, or Reimbursement Obligations owed to, any party hereunder arising from such Bank’s having been a Defaulting Bank.
Appears in 1 contract
Sources: Credit Agreement (CERNER Corp)
Defaulting Banks. Notwithstanding any provision (a) If a Bank becomes, and during the period it remains, a Defaulting Bank, the following provisions shall apply:
(i) such Defaulting Bank’s Pro Rata Share of this Agreement the LC Obligations will, subject to the contrarylimitation in the proviso below, if any automatically be reallocated (effective on the day such Bank becomes a Defaulting Bank, then ) among the following provisions shall apply for so long as such Bank is a Non-Defaulting Banks pro rata in accordance with their respective Commitments; provided that (A) the sum of each Non-Defaulting Bank:’s aggregate principal amount of Advances and Pro Rata Share of the LC Obligations may not in any event exceed the Commitment of such Non-Defaulting Bank as in effect at the time of such reallocation and (B) neither such reallocation nor any payment by a Non-Defaulting Bank pursuant thereto will constitute a waiver or release of any claim the Company, any other Borrower, the Administrative Agent, any Issuing Bank, or any other Bank may have against such Defaulting Bank or cause such Defaulting Bank to be a Non-Defaulting Bank;
(aii) Such to the extent that any portion (the “unreallocated portion”) of the Defaulting Bank will Bank’s share of the LC Obligations cannot be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights so reallocated, whether by reason of the Banks other proviso in clause (i) above or otherwise, the Borrowers will, not later than Defaulting Banks three Banking Days after demand by the Administrative Agent (at the direction of an Issuing Bank), (A) Cash Collateralize the obligations of the Borrowers in respect of such fees)LC Obligations in an amount equal to the aggregate amount of the unreallocated portion of such LC Obligations, or (B) make other arrangements satisfactory to the Administrative Agent and each Issuing Bank, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Bank;
(iiii) Any any amount paid by the Borrowers or otherwise received by the Administrative Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of principal, interest, fees, indemnity payments or other amounts not constituting principal or interestamounts) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Administrative Agent in a segregated non-interest bearing account until (subject to Section 2.18(d2.10(c)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent under this Agreement, second to the payment of any amounts owing by such Defaulting Bank to an Issuing Bank (pro rata as to the respective amounts owing to each of them) under this Agreement, third to the payment of post-default interest and then current interest due and payable to the Non-Banks hereunder other than Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third fourth to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth fifth to pay principal then due and payable to the Non-Defaulting Banks hereunder ratably in accordance with the amounts thereof then due and payable to them, sixth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth seventh after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section 2.10 shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto; and
(iv) so long as such Bank is a Defaulting Bank or a Potential Defaulting Bank, the Issuing Banks shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and such Defaulting Bank’s or such Potential Defaulting Bank’s Pro Rata Share of the then outstanding L/C Obligations will be 100% covered by the Commitments of the Non-Defaulting Banks and/or cash collateral will be provided by the Borrowers in accordance with Section 2.10(a)(ii), and participating interests in any newly issued or increased Letter of Credit shall be allocated among Non-Defaulting Banks in a manner consistent with Section 2.10(a)(ii) (and such Defaulting Bank or Potential Defaulting Bank shall not participate therein). In furtherance of the foregoing, if any Bank becomes, and during the period it remains, a Defaulting Bank or a Potential Defaulting Bank, each Issuing Bank is hereby authorized by each Borrower (which authorization is irrevocable and coupled with an interest) to give, in its discretion, through the Administrative Agent, a Request for Loan pursuant to Section 8.2 in such amounts and in such times as may be required to (i) reimburse an outstanding drawing under a Letter of Credit, and/or (ii) Any amount paid by Cash Collateralize the obligations of the Borrowers for in respect of outstanding Letters of Credit in an amount at least equal to the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused aggregate amount of the Commitment of a Defaulting Bank upon not less than three obligations (3contingent or otherwise) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank or Potential Defaulting Bank in respect of such Letter of Credit.
(b) No Commitment of any Bank shall be increased or, except as otherwise expressly provided in this Section 2.10, otherwise affected, and performance by each Borrower of its obligations shall not be excused or otherwise modified as a result of the operation of this Section 2.10. The rights and remedies against a Defaulting Bank under this Agreement (whether on account of principalSection 2.10 are in addition to any other rights and remedies which the Company, interest, fees, indemnity or any other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent Administrative Agent, any Issuing Bank or any Bank may have against such Defaulting Bank; and.
(dc) In If the event that the Borrowers Company and the Administrative Agent agree in writing in their discretion reasonable determination that a Defaulting Bank is or a Potential Defaulting Bank should no longer be deemed to be a Defaulting Bank or a Potential Defaulting Bank, as the case may be, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)cash collateral), such that Bank will, to the extent applicable, purchase at par such that portion of outstanding Advances of the other Banks and/or make or take such other adjustments actions as the Administrative Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks Advances to be funded and held on a pro rata basis by the Banks in accordance with their respective CommitmentsPro Rata Share, whereupon such Bank will cease to be a Defaulting Bank and will be a Non-or Potential Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such 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 or Potential Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank or Potential Defaulting Bank.
Appears in 1 contract
Sources: Credit Agreement (Amgen Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not Bank’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be entitled to any fees accruing during such period pursuant to restricted as set forth in Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);9.5.
(ib) Any amount paid by the Borrowers payment of principal, interest, fees or otherwise other amounts received by the Administrative Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of feesvoluntary or mandatory, indemnity payments at maturity, pursuant to Article VI or other otherwise, and including any amounts not constituting principal or interest) will not be paid or distributed made available to Administrative Agent by such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject Bank pursuant to Section 2.18(d9.4)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will , shall be applied at such time or times as may be determined by the AgentAdministrative Agent as follows: first, to the fullest extent permitted payment on a pro rata basis of any amounts owing by lawsuch Defaulting Bank to Administrative Agent hereunder; second, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Fronting Bank hereunder; third, if so determined by Administrative Agent or requested by the Fronting Bank, to be held as cash collateral for future funding obligations of such Defaulting Bank of any participation in any applicable Letter of Credit; fourth, if Prologis so requests (so long as no Default exists), to the funding of any Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent; fifth, if so determined by Administrative Agent and Prologis, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of such Defaulting Bank to fund Loans under this Agreement; sixth, second to the payment on a pro rata basis of post-default interest any amounts owing to any applicable Banks and then current interest due and payable to the Non-Fronting Bank as a result of any judgment of a court of competent jurisdiction obtained by such Bank or the Fronting Bank against such Defaulting Banks, ratably among them in accordance with the amounts Bank as a result of such interest then due and payable to themDefaulting Bank’s breach of its obligations under this Agreement; seventh, third so long as no Default or Event of Default exists, to the payment on a pro rata basis of fees then due and payable any amounts owing to the Non-any Loan Party as a result of any judgment of a court of competent jurisdiction obtained by such Loan Party against such Defaulting Banks hereunder, ratably among them in accordance with the amounts Bank as a result of such fees then due and payable to them, fourth to the ratable payment Defaulting Bank’s breach of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all its obligations of the Borrowers hereunder, to pay amounts owing under this Agreement Agreement; and eighth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction may otherwise directjurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or participations in Letters of Credit in respect of which such Defaulting Bank has not fully funded its appropriate share and (y) such Loan or Letter of Credit draw was made at a time when the conditions set forth in Section 3.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and amounts owing in respect of such Letters of Credit owed to, all applicable non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loan of, or any such amounts owed to, such Defaulting Bank. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section 9.15(b) shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents to the foregoing.
(iic) Any amount paid by the Borrowers for the account such Defaulting Bank (x) shall be limited in its right to receive facility fees as provided in Section 2.9(a) and (y) shall be limited in its right to receive Letter of Credit Fees as provided in Section 2.9(b).
(d) During any period in which there is a Defaulting Bank, for purposes of computing the amount of the obligation of each non-Defaulting Bank representing principal to acquire, refinance or interest payable fund participations in Letters of Credit pursuant to such the terms hereof, the Pro Rata Share of each non-Defaulting Bank shall be paid computed without giving effect to the Commitment of such Defaulting Bank; provided that (i) each such reallocation shall be given effect only if, at the date the applicable Bank in becomes a Defaulting Bank, no Default or Event of Default exists; and (ii) the same amounts and in the same manner as if such aggregate obligation of each non-Defaulting Bank were a Nonto acquire, refinance or fund participations in Letters of Credit shall not exceed the unused Commitment of that non-Defaulting Bank;.
(ce) The Borrowers may terminate the unused amount of the Commitment of If Prologis, Administrative Agent and Fronting Bank agree in writing, each in their sole discretion, that a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not should no longer be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)cash collateral), such that Bank will, to the extent applicable, purchase at par such that portion of outstanding Advances Loans of the other Banks and/or make or take such other adjustments actions as the Administrative Agent may determine to be necessary to cause the Revolving Loans and funded and unfunded participations in Letters of Credit Obligations of the Banks to be held on a pro rata basis by the Banks in accordance with their respective CommitmentsPro Rata Share (without giving effect to Section 9.15(d)), whereupon such that Bank will cease to be a Defaulting Bank and will be a Non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers any Borrower while such 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 Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from such that Bank’s having been a Defaulting Bank.
(f) Upon any determination by Administrative Agent that any Bank constitutes a Defaulting Bank, Administrative Agent shall promptly provide Prologis with notice of such determination; provided that any failure to so notify Prologis of such determination shall not have any effect on the status of such Bank as a Defaulting Bank.
(g) Without limitation of any other provision of this Agreement, each Bank hereby irrevocably appoints Administrative Agent and its officers and agents, until the expiration of the Term, as such Bank’s true and lawful attorney-in-fact (which appointment is coupled with an interest and is irrevocable), with full power of substitution, to, after any Bank has become a Defaulting Bank, sign the name of such Defaulting Bank on any Consent and to deliver such Consent to any Qualified Borrower that is a TMK if such Consent is required to be delivered pursuant to the terms of this Agreement.
Appears in 1 contract
Defaulting Banks. (a) Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(ai) Such such Defaulting Bank will shall not be entitled to receive any fees accruing during such period commitment fee pursuant to Section 2.04 2.08(a) for any period during which it is a Defaulting Bank (without prejudice and PFI shall not be required to the rights of the Banks other than pay any such fee that would otherwise have been required to have been paid to such Defaulting Banks in respect of such feesBank);
(iii) Any amount paid by the Borrowers or otherwise received by the Agent for the account Commitments and Revolving Credit Exposures of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will shall not be paid included in determining whether all Banks or distributed to the Required Banks have taken or may take any action hereunder, and such Defaulting Bank’s right to approve any amendment, but will instead waiver or other modification with respect to this Agreement shall be retained by restricted as set forth in Section 9.05;
(iii) with respect to any Fronted Letter of Credit and/or the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination L/C Obligations of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank with respect thereto:
(A) with respect to any Fronted Letter of Credit outstanding at the Agent under this Agreementtime such Bank becomes a Defaulting Bank, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts all or any portion of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid L/C Obligations held by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in reallocated among the same amounts and in the same manner as if such Defaulting Bank were a Nonnon-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective CommitmentsApplicable Percentages but only to the extent (x) the sum of all non-Defaulting Banks’ Revolving Credit Exposures plus such Defaulting Bank’s L/C Obligations does not exceed the aggregate amount of all non-Defaulting Banks’ Commitments (except as provided in Section 2.18(j) for Limited Fronting Banks), whereupon such Bank will cease to be a (y) the Revolving Credit Exposure of each non-Defaulting Bank and will be a Nonshall not exceed the Commitment of such non-Defaulting Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis to reflect the foregoing); except as provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while in Section 2.18(j) if such 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 Nonnon-Defaulting Bank will constitute is a waiver or release of any claim of any party hereunder arising from such Limited Fronting Bank’s having been a Defaulting Bank.) and (z) the conditions set forth in
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Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such 2.13.1 fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 2.3 [Commitment Fees];
2.13.2 the Commitment and outstanding Loans of such Defaulting Bank shall not be included in determining whether the Required Banks have taken or may take any action hereunder (without prejudice including any consent to any amendment, waiver or other modification pursuant to Section 10.1 [Modifications, Amendments or Waivers]); provided, that this clause (ii) shall not apply to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid by the Borrowers or otherwise received by the Agent for the account vote of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account in the case of feesan amendment, indemnity payments waiver or other amounts not constituting principal modification requiring the consent of such Bank or interest) will not be paid each Bank directly affected thereby;
2.13.3 if any Swing Loans are outstanding or distributed to any Letter of Credit Obligations exist at the time such Bank becomes a Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination then:
2.13.3.1 all or any part of the Commitments outstanding Swing Loans and payment in full Letter of all obligations Credit Obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in reallocated among the same amounts and in the same manner as if such Defaulting Bank were a Nonnon-Defaulting Bank;
(c) The Borrowers may terminate the unused amount of the Commitment of a Defaulting Bank upon not less than three (3) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or release of any claim any Borrower, the Agent or any Bank may have against such Defaulting Bank; and
(d) In the event that the Borrowers and the Agent agree in writing in their discretion that a Bank is no longer a Defaulting Bank, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Ratable Shares but only to the extent that (x) the Dollar Equivalent Revolving Facility Usage does not exceed the total of all non-Defaulting Banks' Revolving Credit Commitments, whereupon and (y) no Potential Default or Event of Default has occurred and is continuing at such time;
2.13.3.2 if the reallocation described in Section 2.13.3.1 above cannot, or can only partially, be effected, the Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such outstanding Swing Loans, and (y) second, cash collateralize for the benefit of the Issuing Bank will cease the Borrower's obligations corresponding to such Defaulting Bank's Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to Section 2.13.3.1 above) in a deposit account held at the Administrative Agent for so long as such Letter of Credit Obligations are outstanding;
2.13.3.3 if the Borrower cash collateralizes any portion of such Defaulting Bank's Letter of Credit Obligations pursuant to Section 2.13.3.2 above, the Borrower shall not be a required to pay any fees to such Defaulting Bank and will be a Nonpursuant to Section 2.9.2 [Letter of Credit Fees] with respect to such Defaulting Bank's Letter of Credit Obligations during the period such Defaulting Bank's Letter of Credit Obligations are cash collateralized;
2.13.3.4 if the Letter of Credit Obligations of the non-Defaulting Banks are reallocated pursuant to Section 2.13.3.1 above, then the fees payable to the Banks pursuant to Section 2.9.2 shall be adjusted in accordance with such non-Defaulting Banks' Ratable Share; and
2.13.3.5 if all or any portion of such Defaulting Bank's Letter of Credit Obligations are neither reallocated nor cash collateralized pursuant to Section 2.13.3.1 or 2.13.3.2 above, then, without prejudice to any rights or remedies of the Issuing Bank or any other Bank hereunder, all Letter of Credit Fees payable under Section 2.9.2 with respect to such Defaulting Bank's Letter of Credit Obligations shall be payable to the Issuing Bank (and each Bank’s ratable portion of aggregate outstanding Advances will automatically be adjusted on a prospective basis not to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while such Bank was a Defaulting Bank; ) until and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release that such Letter of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank.Credit Obligations are reallocated and/or cash collateralized; and
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Defaulting Banks. (a) Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Such Defaulting Bank will not be entitled to any fees accruing during such period pursuant to Section 2.04 (without prejudice to the rights of the Banks other than Defaulting Banks in respect of such fees);
(i) Any amount paid facility fees shall cease to accrue, or to be payable by the Borrowers or otherwise received by Borrower, on the Agent for the account of a Defaulting Bank under this Agreement other than any amounts representing principal or interest payable to such Defaulting Bank (whether on account of fees, indemnity payments or other amounts not constituting principal or interest) will not be paid or distributed to such Defaulting Bank, but will instead be retained by the Agent in a segregated non-interest bearing account until (subject to Section 2.18(d)) the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder and will be applied by the Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Bank to the Agent under this Agreement, second to the payment of post-default interest and then current interest due and payable to the Non-Defaulting Banks, ratably among them in accordance with the amounts of such interest then due and payable to them, third to the payment of fees then due and payable to the Non-Defaulting Banks hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fourth to the ratable payment of other amounts then due and payable to the Non-Defaulting Banks, and fifth after the termination of the Commitments and payment in full of all obligations of the Borrowers hereunder, to pay amounts owing under this Agreement to such Defaulting Bank or as a court of competent jurisdiction may otherwise direct.
(ii) Any amount paid by the Borrowers for the account of a Defaulting Bank representing principal or interest payable to such Defaulting Bank shall be paid to such Defaulting Bank in the same amounts and in the same manner as if such Defaulting Bank were a Non-Defaulting Bank;
(c) The Borrowers may terminate the unused amount unfunded portion of the Commitment of a such Defaulting Bank upon not less than three (3pursuant to Section 2.09(a) Business Days’ prior notice to the Agent (which will promptly notify the Banks thereof), and in such event the provisions of Section 2.18(b) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Agreement or otherwise;
(whether ii) Letter of Credit Fees shall cease to accrue, or to be payable by the Borrower, on the Pro Rata Share of a Letter of Credit of such Defaulting Bank pursuant to Section 2.09(c) for the account of principalsuch Defaulting Bank or otherwise;
(iii) the Commitment or Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks or the Required Banks have taken or may take any action hereunder (including any consent to any amendment, interest, fees, indemnity waiver or other amountsmodification pursuant to Section 9.05); provided, provided however, that such termination will this clause (iii) shall not be deemed (subject to be Section 9.05) apply to the vote of a Defaulting Bank in the case of an amendment, waiver or release other modification specifically requiring the consent of any claim any Borrowersuch Bank or each Bank affected thereby (and in circumstances where the consent of “all Banks” is required, the Agent or any Bank may have against such Defaulting Bank’s vote shall not be included except (A) such Defaulting Bank’s Commitment may not be increased or extended without its consent and (B) the principal amount of, or interest or fees payable on, Loans or L/C Borrowings may not be reduced or excused or the scheduled date of payment may not be postponed as to such Defaulting Bank without such Defaulting Bank’s consent); and
(div) In if any L/C ObligationsObligation exists at the event that the Borrowers and the Agent agree in writing in their discretion that a time such Bank is no longer becomes a Defaulting Bank then:
(A) provided that no Default or Event of Default exists, all or any part of such Defaulting Bank, the Agent will so notify the parties hereto, whereupon as ’s Pro Rata Share of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in Outstanding Amount of all L/C Obligations shall be reallocated among the segregated account referred to in Section 2.18(b)), such Bank will, to the extent applicable, purchase at par such portion of outstanding Advances of the other non-Defaulting Banks and/or make such other adjustments as the Agent may determine to be necessary to cause the Revolving Credit Obligations of the Banks to be on a pro rata basis in accordance with their respective Commitments, whereupon such Bank will cease Pro Rata Shares but only to be a Defaulting Bank and will be a Nonthe extent the aggregate principal amount of Revolving Loans of all non-Defaulting Bank (and each Bank’s ratable portion plus such Defaulting Bank’s Pro Rata Share of the Outstanding Amount of all L/C Obligations do not exceed the total of all non- Defaulting Banks’ Commitments;
(B) if the reallocation described in clause (A) above cannot, or can only partially, be effected, the Borrower shall within one Domestic Business Day following notice Subsidiary’s assets, except Liens (i) granted by the Borrower to the trustee pursuant to any Indenture, (ii) on any such Indebtedness granted by the Borrower or its Consolidated Entity to secure any borrowing for the purpose of making loans to Member power supply systems or loans to Members for bulk power supply projects or loans to Members for the purpose of providing financing to telephone and related systems eligible to borrow from the RUS or loans to borrowers borrowing from National Cooperative Services Corporation or Rural Telephone Finance Cooperative, which borrowing or borrowings are on terms (except as to terms of interest, premium, if any, and amortization) not materially more disadvantageous to the Borrower’s unsecured creditors than the borrowings under any Indenture (it being understood that the Borrower can not pledge such assets to an extent greater than 150% of the aggregate outstanding Advances will automatically be adjusted principal amount of such Indebtedness), (iii) of current taxes not delinquent or a security for taxes being contested in good faith, (iv) other than in favor of the PBGC, created by or resulting from any legal proceedings (including legal proceedings instituted by the Borrower or any Subsidiary) which are being contested in good faith by appropriate proceedings, including appeals of judgments as to which a stay of execution shall have been issued, and adequate reserves shall have been established, (v) created by the Borrower to secure Guarantees by the Borrower of Indebtedness, the interest on which is excludable from the gross income of the recipient thereof for Federal income tax purposes as provided in Section 103(a) of the Internal Revenue Code or Section 103(a) of the Internal Revenue Code of 1954, as amended, (x) of a prospective basis Member which is a state or political subdivision thereof or (y) of a state or political subdivision thereof incurred to reflect benefit a Member for one of the foregoingpurposes provided in Section 142(a)(2), (4), (5), (6), (8), (9), (10) or (12) of the Internal Revenue Code or Section 103(b)(4)(D), (E), (F), (G), (H) or (J) of the Internal Revenue Code of 1954, as amended, (vi) granted by any Subsidiary to the Borrower, (vii) REDLG Program Liens securing REDLG Obligations with respect to government Guarantees of Indebtedness of the Borrower and (viii) on any such Indebtedness granted by the Borrower to secure any borrowings, which borrowings are on terms (except as to terms of interest, premium, if any, and amortization) not materially more disadvantageous to the Borrower’s unsecured creditors than the borrowings under any Indenture (it being understood that the Borrower can not pledge such assets to an extent greater than 150% of the aggregate principal amount of such Indebtedness); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or Liens incurred in reliance on behalf clauses (ii), (vii) and (viii) of this Section 5.10 shall not secure amounts exceeding $7,500,000,000 in the Borrowers while such 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 Non-Defaulting Bank will constitute a waiver or release of aggregateLien Exception Amount at any claim of any party hereunder arising from such Bank’s having been a Defaulting Bankone time outstanding.
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Sources: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)