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) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a); (b) the Commitment and Outstanding Extensions of Credit of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) 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 10.1); 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 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 Loan Documents, in each case without the consent of such Bank; (c) if any L/C Obligations exist at the time such Bank becomes a Defaulting Bank then; (i) all or any part of the L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, but only to the extent the sum of all non-Defaulting Banks’ 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, 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, 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, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 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 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 Administrative Agent, the Borrower and the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 3 contracts
Sources: Credit Agreement (Centerpoint Energy Resources Corp), Credit Agreement (Centerpoint Energy Resources Corp), Credit Agreement (Centerpoint Energy Resources Corp)
Defaulting Banks. Notwithstanding (a) If any provision Letters of this Agreement or any other Loan Document to Credit are outstanding at the contrary, if any time a Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions of Credit of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) 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 10.1); 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 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 Loan DocumentsCommitments have not been terminated in accordance with Section 8.01, in each case without the consent of such Bank;
(c) if any L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;:
(i) so long as no Default has occurred and is continuing, all or any part of the L/C Exposure participations in outstanding Letters of such Defaulting Bank Credit shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the nonBanks that are Non-Defaulting Banks in accordance with their respective Revolving Percentages, Applicable Percentages (disregarding any Defaulting Bank’s Commitment) but only to the extent that the sum of (A) the aggregate principal amount of all nonAdvances made by the Non-Defaulting Banks (in their capacity as Banks) and outstanding at such time, plus (B) the Non-Defaulting Banks’ Outstanding Extensions of Credit aggregate LC Exposures, plus (C) such Defaulting Bank’s L/C Exposure LC Exposure, does not exceed the total of all nonNon-Defaulting Banks’ Commitments;
(ii) if the reallocation described in clause (i(i) above cannot, or can only partially, be effected, the Borrower shall, Company shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agentany Issuing Bank, cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Bank’s L/C LC Exposure (after giving effect to any partial reallocation pursuant to clause (i(i) above) in accordance with the procedures set forth in Section 8.2 for by paying cash collateral to such Issuing Bank; provided that, so long as no Default is continuing, such L/C cash collateral shall be released promptly upon the earliest of (A) the reallocation of the LC Exposure is outstanding;
(iii) if of 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 nonNon-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 nonIssuing 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’ Revolving Applicable Percentages after giving effect to such reallocationof Letters of Credit as reallocated; andor
(viv) if all or to the extent any portion of such Defaulting Bank’s L/C Exposure Applicable Percentage of Letters of Credit is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.07(a), then, without prejudice to any rights or remedies of any Issuing Bank or any other Bank hereunder, all Letter letter of Credit participation credit fees that otherwise would have been payable to such Defaulting Bank under Section 2.5(c)(i4.01(b)(i) with respect to such Defaulting Bank’s unreallocated L/C Exposure Applicable Percentage of Letters of Credit that has not been reallocated or collateralized shall be payable to the applicable Issuing Banks, ratably based on the portion Bank until such Defaulting Bank’s Applicable Percentage 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 has been fully cash collateralized pursuant to clause (i) or (ii) above;and/or reallocated.
(db) so So long as such any Bank is a Defaulting Bank, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Exposure, related exposure will be 100% covered by the Commitments of the nonNon-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower Company in accordance with Section 2.8(c2.07(a) or provided in accordance with Section 2.07(g), and participating interests in any such newly issued issued, amended or increased Letter of Credit shall be allocated among nonNon-Defaulting Banks in a manner consistent with Section 2.8(c)(i2.07(a)(i) (and such Defaulting Bank Banks shall not participate therein). If .
(ic) a Bankruptcy Event or a Bail-In Action with respect to a Parent No Commitment of any Bank shall occur following be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.07, performance by the date hereof and for so long as such event shall continue or (ii) the Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling Company of its obligations to extend credit generally (such Bank referenced in clauses (i) and (ii), a “Disregarded Bank”), the Issuing Bank shall not be required to issue, amend excused or increase any Letter of Credit, unless the Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments otherwise modified as a result of the non-Disregarded Banks andoperation of this Section 2.07. The rights and remedies against a Defaulting Bank under this Section 2.07 are in addition to any other rights and remedies which the Company, 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 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 Administrative Agent, any Bank or any Issuing Bank may have against such Defaulting Bank.
(d) [Reserved].
(e) [Reserved].
(f) If the Borrower Company, the Administrative Agent and the each Issuing Banks each agrees Bank agree in writing in their reasonable determination that a Defaulting Bank has adequately remedied all matters that caused such Bank should no longer be deemed to be a Defaulting Bank, then the L/C Exposures Administrative Agent will so notify the parties hereto, whereupon as of the Banks shall be readjusted effective date specified in such notice and subject to reflect any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Bank will, to the inclusion extent applicable, purchase, at par, that portion of such Bank’s Commitment, and on such date such Bank shall purchase at par such of the Revolving Loans outstanding Advances of the other Banks or take such other actions as the Administrative Agent shall may determine may to be necessary to cause the Advances and funded and unfunded participations in order for such Bank Letters of Credit to hold such Revolving Loans be held on a pro rata basis by the Banks in accordance with its Revolving Percentage. The rights and remedies againsttheir Applicable Percentages (without giving effect to Section 2.07(a)), and whereupon such Bank will cease to be a Defaulting Bank; provided that no adjustments will be made retroactively with respect toto fees accrued or payments made by or on behalf of the Company while that Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to 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 Section 2.8 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 in addition tothen outstanding; fifth, and cumulative and not in limitation of, all other rights and remedies that if so determined by the Administrative Agent and each Bankthe Company, each Issuing to be held in a cash collateral account and released in order to satisfy obligations of such Defaulting Bank or to fund Advances under this Agreement; sixth, if so determined by the Borrower may at any time have againstAdministrative Agent and the Company, or with respect to, 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 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) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);2.06.
(b) the Commitment The Commitments and Outstanding Extensions of Credit Loans of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) 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 10.111.04); providedprovided that any waiver, that this clause amendment or modification (bx) shall not apply increasing or extending the term of the Commitment of, reducing amounts owed to or extending the vote final maturity of a the loans of such Defaulting Bank in the case of an amendment, waiver or other modification (y) requiring the consent of such Bank all Banks or each affected Bank which affects such Defaulting Bank differently than other 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 Loan DocumentsBanks shall, in each case without case, require the consent of such Defaulting Bank;
(c) if If any L/C Obligations exist Exposure exists at the time such Bank becomes a Defaulting Bank then;:
(i) all or any part of the L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, Percentages but only to the extent that i) the sum of all non-Defaulting Banks’ Outstanding Revolving Extensions of Credit plus such Defaulting Bank’s L/C Exposure does not exceed the total of all non-Defaulting Banks’ CommitmentsCommitments and ii) with respect to each such non-Defaulting Bank, the sum of such non-Defaulting Bank’s Revolving Extensions of Credit plus its allocated percentage of such Defaulting Bank’s L/C Exposure does not exceed such non-Defaulting Bank’s Commitment;
(ii) if If the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, Company shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, Agent cash collateralize for the benefit of the applicable Issuing Banks Lenders only the BorrowerCompany’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 If the Borrower Company cash collateralizes any portion of such Defaulting Bank’s L/C Exposure pursuant to clause (ii) above, the Borrower Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c2.04(c)(i) 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 If the L/C Exposure of the non-Defaulting Bank is reallocated pursuant to clause (i) above, then the Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank the Banks pursuant to Section 2.5(c)(i2.06(a) with respect to such Defaulting Bank’s reallocated L/C Exposure and Section 2.04(c)(i) shall be payable to the non-Defaulting Banks adjusted in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocationPercentages; and
(v) if 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 Lender 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)(i2.04(c)(i) with respect to such Defaulting Bank’s unreallocated L/C Exposure shall be payable to the such Issuing Banks, ratably based on the portion of such L/C Exposure attributable to Letters of Credit issued by each Issuing Bank, Lender until and to the extent that such L/C Exposure is reallocated and/or cash collateralized pursuant to clause (i) or (ii) abovecollateralized;
(d) so long as such Bank is a Defaulting Bank, no Issuing Bank Lender shall be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are it is satisfied that the related exposure and the Defaulting Bank’s then outstanding L/C Exposure, Exposure will be 100% covered by the Commitments of the non-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower Company in accordance with Section 2.8(c2.12(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 2.8(c)(i2.12(c) (and such Defaulting Bank shall not participate therein). If .
(e) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 4.07(b) but excluding Section 5.07) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent and the Issuing Lenders hereunder, (ii) second, to the funding of any Loan or participation in any Letter of Credit 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 or participations in Letters of Credit under this Agreement, (iv) fourth, to the payment of any amounts then owing to the Banks or Issuing Lenders as a Bankruptcy Event result of any judgment of a court of competent jurisdiction obtained by any Bank or Issuing Lender against such Defaulting Bank as a Bail-In Action result of such Defaulting Bank’s breach of its obligations under this Agreement, (v) fifth, to the payment of any amounts then 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 (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided, with respect to this clause (vi), that if such payment is (x) a Parent prepayment of the principal amount of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) the Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations to extend credit generally (such Bank referenced in clauses (i) Loans and (ii)y) made at a time when the conditions set forth in Section 6.02 are satisfied, a “Disregarded Bank”), such payment shall be applied solely to prepay the Issuing Bank shall not be required to issue, amend or increase any Letter Loans of Credit, unless the Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments of the all non-Disregarded Defaulting Banks and, pro rata prior to being applied to the extent such 100% coverage is not achievedprepayment of any Loans, by cash collateral which will be provided by the Borrower in the manner consistent with Section 2.8(c)or reimbursement obligations owed to, and participating interests in 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)Defaulting Bank. In the event that the Administrative Agent, the Borrower Issuing Lenders and the Issuing Banks Company each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures Exposure of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment, Commitment and on such date such previously Defaulting Bank shall purchase at par such of the Revolving Loans of the other Banks (other than Money Market Loans) as the Administrative Agent shall determine may be necessary in order for such previously Defaulting Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Motorola Solutions, Inc.), Revolving Credit Agreement (Motorola Solutions, Inc.)
Defaulting Banks. Notwithstanding (a) If any provision Fronted Letters of this Agreement or any other Loan Document to Credit are outstanding at the contrary, if any time a Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions of Credit of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) 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 10.1); 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 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 Loan DocumentsCommitments have not been terminated in accordance with Section 8.01, in each case without the consent of such Bank;
(c) if any L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;:
(i) so long as no Default has occurred and is continuing, all or any part of the L/C Exposure participations in outstanding Fronted Letters of such Defaulting Bank Credit shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the nonBanks that are Non-Defaulting Banks in accordance with their respective Revolving Percentages, Applicable Percentages (disregarding any Defaulting Bank’s Commitment) but only to the extent that the sum of (A) the aggregate principal amount of all nonAdvances made by the Non-Defaulting Banks (in their capacity as Banks) and outstanding at such time, plus (B) the Non-Defaulting Banks’ Outstanding Extensions of Credit aggregate LC Exposures, plus (C) such Defaulting Bank’s L/C Exposure LC Exposure, does not exceed the total of all nonNon-Defaulting Banks’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, Company shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agentany Issuing Bank, cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Bank’s L/C 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 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 (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 participation or a portion thereof is collateralized, no fees that otherwise would have been 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 such Defaulting Bank the Banks pursuant to Section 2.5(c)(i4.01(b)(i) with respect to such Defaulting Bank’s reallocated L/C Exposure shall be payable to the non-Defaulting Banks adjusted in accordance with such nonthe Non-Defaulting Banks’ Revolving Applicable Percentages after giving effect to such reallocationof Fronted Letters of Credit as reallocated; andor
(viv) if all or to the extent any portion of such Defaulting Bank’s L/C Exposure Applicable Percentage of Fronted Letters of Credit is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.07(a), then, without prejudice to any rights or remedies of any Issuing Bank or any other Bank hereunder, all Letter letter of Credit participation credit fees that otherwise would have been payable to such Defaulting Bank under Section 2.5(c)(i4.01(b)(i) with respect to such Defaulting Bank’s unreallocated L/C Exposure Applicable Percentage of Fronted Letters of Credit that has not been reallocated or collateralized shall be payable to the applicable Issuing Banks, ratably based on the portion Bank until such Defaulting Bank’s Applicable Percentage of such L/C Exposure attributable to Fronted Letters of Credit issued by each Issuing Bank, until and to the extent that such L/C Exposure is reallocated and/or has been fully cash collateralized pursuant to clause (i) or (ii) above;and/or reallocated.
(db) so So long as such any Bank is a Defaulting Bank, no Issuing Bank shall be required to issue, amend or increase any Fronted Letter of Credit, unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Exposure, related exposure will be 100% covered by the Commitments of the nonNon-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower Company in accordance with Section 2.8(c2.07(a) or provided in accordance with Section 2.07(g), and participating interests in any such newly issued issued, amended or increased Fronted Letter of Credit shall be allocated among nonNon-Defaulting Banks in a manner consistent with Section 2.8(c)(i2.07(a)(i) (and such Defaulting Bank Banks shall not participate therein). If .
(ic) a Bankruptcy Event or a Bail-In Action with respect to a Parent No Commitment of any Bank shall occur following be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.07, performance by the date hereof Company of its obligations shall not be excused or otherwise modified as a result of the operation of this Section 2.07. The rights and for so long as such event shall continue remedies against a Defaulting Bank under this Section 2.07 are in addition to any other rights and remedies which the Company, the Administrative Agent, any Bank or (ii) the any Issuing Bank has may have against such Defaulting Bank.
(d) When a good faith belief that any Defaulting Bank has defaulted in fulfilling its obligations to extend credit generally (such Bank referenced in clauses shall exist (i) and (ii), a “Disregarded Bank”), the Issuing any Multi-Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 issued or increased Letter of Credit shall be allocated among issued by the nonNon-Disregarded 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) 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 manner consistent Bank becomes a Defaulting Bank, and the Commitments have not been terminated in accordance with Section 2.8(c8.01, then (i) (and 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 Disregarded Multi-Bank shall not participate therein). In Letter of Credit which excludes the event Defaulting Banks as issuers thereunder but only to the extent that the Administrative Agentsum 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 Borrower Administrative Agent and the each Issuing Banks each agrees Bank agree in writing in their reasonable determination that a Defaulting Bank has adequately remedied all matters that caused such Bank should no longer be deemed to be a Defaulting Bank, then the L/C Exposures Administrative Agent will so notify the parties hereto, whereupon as of the Banks shall be readjusted effective date specified in such notice and subject to reflect any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Bank will, to the inclusion extent applicable, purchase that portion of such Bank’s Commitment, and on such date such Bank shall purchase at par such of the Revolving Loans outstanding Advances of the other Banks or take such other actions as the Administrative Agent shall may determine may to be necessary to cause the Advances, obligations under Multi-Bank Letters of Credit outstanding and funded and unfunded participations in order for such Bank Fronted Letters of Credit to hold such Revolving Loans be held on a pro rata basis by the Banks in accordance with its Revolving Percentage. The rights and remedies againsttheir Applicable Percentages (without giving effect to Section 2.07(a)), and whereupon such Bank will cease to be a Defaulting Bank; provided that no adjustments will be made retroactively with respect toto fees accrued or payments made by or on behalf of the Company while that Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to 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 Section 2.8 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 in addition tothen outstanding; fifth, and cumulative and not in limitation of, all other rights and remedies that if so determined by the Administrative Agent and each Bankthe Company, each Issuing to be held in a cash collateral account and released in order to satisfy obligations of such Defaulting Bank or to fund Advances under this Agreement; sixth, if so determined by the Borrower may at any time have againstAdministrative Agent and the Company, or with respect to, 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 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) Commitment Fees shall cease Notwithstanding anything to accrue on the unfunded portion contrary contained herein, the Maximum Credit Amount of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions of Credit of such a Defaulting Bank shall not be included in determining whether all Banks, the Super Majority Banks (or each Bank) or the Majority 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, amendment or waiver or other modification pursuant to Section 10.114.2); providedprovided that, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of such Bank all Banks or each affected Bank which affects such Defaulting Bank differently than other affected thereby if Banks shall require the consent of such Bank is an affected Defaulting Bank; provided, further, and provided further that there in no event shall not be any amendment, modification or waiver (i) the Commitment, Elected Commitment or Maximum Credit Amount of any provision Defaulting Bank be increased without the consent of Section 4.2 or Section 10.1 in a manner that would alter the pro rata sharing of payments required therebysuch Defaulting Bank, or (ii) causing the reduction Termination Date or any date fixed for any payment of principal of or interest on the percentage specified in the definition of Majority Banks, Loan 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 Loan Documents, in each case fees hereunder be postponed without the consent of such Defaulting Bank;.
(cb) if If any L/C Obligations exist at Bank shall fail to make any payment referenced in clause (a) of the time such Bank becomes a definition of “Defaulting Bank then;
Bank”, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) all or apply any part of the L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, but only to the extent the sum of all non-Defaulting Banks’ 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, or can only partially, be effected, the Borrower shall, within two Business Days following the Borrower’s receipt of written notice amounts thereafter received by the Administrative Agent, cash collateralize Agent for the account of such Bank and for the benefit of the applicable Issuing Banks only the BorrowerAdministrative Agent or any Letter of Credit Issuer to satisfy such Bank’s obligations corresponding to hereunder until all 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 unsatisfied obligations are fully paid, and/or (ii) abovehold any such amounts in a segregated account as cash collateral for, the Borrower shall not be required to pay and application to, 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 future funding obligations 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 ; in the case 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 each 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, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 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 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) 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)) above, in any order as determined by the Administrative Agent in its discretion; provided that, subject to Section 14.17, no reallocation hereunder shall constitute a “Disregarded waiver or release of any claim of any party hereunder against such Bank as a result of such Bank”), the Issuing Bank ’s increased exposure following such reallocation.
(c) Borrower shall not be required obligated to issue, amend or increase pay the Administrative Agent any Letter of Credit, unless the Issuing Banks are satisfied that the Disregarded Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments ratable share of the non-Disregarded Banks andfees described in Sections 2.11, 2.12 or 2.13 (notwithstanding anything to the extent contrary in such 100% coverage is not achieved, by cash collateral which will be provided by sections) for the Borrower in period commencing on the manner consistent with Section 2.8(c), and participating interests in 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 day such Disregarded Defaulting Bank shall not participate therein). In the event that the Administrative Agent, the Borrower and the Issuing Banks each agrees that becomes a Defaulting Bank has adequately remedied all matters that caused and continuing for so long as such Bank continues to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Laredo Petroleum, Inc.), Credit Agreement (Laredo Petroleum, Inc.)
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, if (a) If any Bank becomes with a Revolving Credit Commitment becomes, and during the period it remains, a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions of Credit of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendmentapply, waiver or other modification pursuant to Section 10.1); provided, that this clause (b) shall not apply notwithstanding anything to the vote of a Defaulting Bank contrary 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 Loan Documents, in each case without the consent of such Bank;
(c) if any L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;Agreement:
(i) so long as no Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of the L/C Exposure of such Defaulting Bank shall Bank’s participation in Letter of Credit Outstandings and Swing Loans will, subject to the limitation in the proviso below, automatically be reallocated (effective as of no later than one (1) Business Day after the date Administrative Agent has actual knowledge that such Bank becomes has become a Defaulting Bank) among the nonNon-Defaulting Banks pro rata in accordance with their respective Revolver Percentages (calculated as if the Defaulting Bank’s Revolving Percentages, but only Credit Commitment was reduced to zero and each Non-Defaulting Bank’s Revolving Credit Commitment had been increased proportionately); provided that the sum of each Non-Defaulting Bank’s total Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Bank as in effect at the time of such reallocation; and
(ii) to the extent that any portion (the sum “unreallocated portion”) of all non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s L/C Exposure does participation in Letter of Credit Outstandings and Swing Loans cannot 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, 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 reallocated pursuant to clause (i) above) in accordance with the procedures set forth in Section 8.2 above for so long as such L/C Exposure is outstanding;
(iii) if any reason, the Borrower cash collateralizes will, not later than two (2) Business Days after demand by the Administrative Agent (at the direction of any Letter of Credit Issuer and/or the Swing Lender), (y) Cash Collateralize the obligations of the Borrower to such Letter of Credit Issuer or the Swing Lender in respect of such exposure, as the case may be, in an amount at least equal to the aggregate amount of the unreallocated portion of such Defaulting Bank’s L/C Exposure participation in Letter of Credit Outstandings and Swing Loans or (z) make other arrangements satisfactory to the Administrative Agent, the Letter of Credit Issuer and the Swing Lender in their sole discretion to protect them against the risk of non-payment by such Defaulting Bank; provided that, subject to Section 10.17, neither any such reallocation nor any payment by a Non-Defaulting Bank pursuant thereto nor any such Cash Collateralization or reduction will constitute a waiver or release of any claim the Borrower, the Administrative Agent, a Letter of Credit Issuer, the Swing Lender or any other Bank may have against such Defaulting Bank or cause such Defaulting Bank to be a Non-Defaulting Bank.
(b) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of a Defaulting Bank (whether voluntary or mandatory, at maturity, pursuant to clause (iiArticle 6 or otherwise) above, or received by the Borrower shall not be required to pay any fees to such Administrative Agent from a Defaulting Bank pursuant to Section 2.5(c10.4 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 the Letter of Credit Issuer or the Swing Lender hereunder; third, to Cash Collateralize the unreallocated portion of such Defaulting Bank’s participation in Letter of Credit Outstandings and Swing Loans in accordance with Section 2.17(a)(ii); fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan or funded participation 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 (A) satisfy such Defaulting Bank’s potential future funding obligations with respect to Loans and funded participations under this Agreement and (B) Cash Collateralize future unreallocated portions of such Defaulting Bank’s participation in Letter of Credit Outstandings and Swing Loans with respect to future Letters of Credit and Swing Loans issued under this Agreement in accordance with Section 2.17(a)(ii); sixth, to the payment of any amounts owing to the Banks, the Letter of Credit Issuer or the Swing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Bank, such Letter of Credit Issuer or the Swing Lender against such Defaulting Bank as a result of such 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 Borrower against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; and eighth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided that if (1) such payment is a payment of the principal amount of any Loans or funded participations in Letters of Credit or Swing Loans in respect of which such Defaulting Bank has not fully funded its appropriate share, and (2) such Loans were made or the related Letters of Credit or Swing Loans were issued at a time when the conditions set forth in Section 3.3 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and funded participations in Letters of Credit or Swing Loans owed to, all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loans of, or funded participations in Letters of Credit or Swing Loans owed to, such Defaulting Bank until such time as all Loans and funded and unfunded participations in Letter of Credit Outstandings and Swing Loans are held by the Banks pro rata in accordance with the Revolving Credit Commitments under the applicable Revolving Credit without giving effect to Section 2.17(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 2.17(b) shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
(c) If the Borrower, the Administrative Agent, the Letter of Credit Issuers and the Swing Lender agree in writing in their discretion that any Defaulting Bank has ceased 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, that Bank will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Banks or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Loans to be held pro rata by the Banks in accordance with their Percentage under the applicable Credit without giving effect to Section 2.17(a), whereupon such Bank will cease to be a Defaulting Bank; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from that Bank’s having been a Defaulting Bank.
(d) So long as any Bank is a Defaulting Bank, no Letter of Credit Issuer will be required to issue, amend, extend, renew or increase any Letter of Credit unless it is reasonably satisfied that the Borrower has complied with the requirements of Section 2A.1(a)(iii).
(e) No Defaulting Bank shall be entitled to receive any commitment fee pursuant to Section 2.7(a) or (f) or Letter of Credit Fee for any period during which that Bank is a Defaulting Bank. With respect to any commitment fee pursuant to Section 2.7(a) or Letter of Credit Fee not required to be paid to any Defaulting Bank pursuant to this clause (e), the Borrower shall (x) pay to each Non-Defaulting Bank that portion of any such fee otherwise payable to such Defaulting Bank with respect to such Defaulting Bank’s L/C Exposure during the period participation in Letters of Credit or Swing Loans that has been reallocated to such Non-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 Bank pursuant to clause Section 2.17(a)(i), (iy) above, then the pay to each Letter of Credit participation fees that Issuer and Swing Lender, as applicable, the amount of any such fee otherwise would have been payable to such Defaulting Bank pursuant to Section 2.5(c)(i) with respect the extent allocable to such Letter of Credit Issuer or Swing Lender’s Fronting Exposure 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, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 issued or increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.8(c)(i(z) (and such Defaulting Bank shall not participate therein). 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) 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 Issuing Bank shall not be required to issue, amend or increase pay the remaining amount of any Letter of Credit, unless 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 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 Administrative Agent, the Borrower and the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bankfee.
Appears in 2 contracts
Sources: Credit Agreement (Bread Financial Holdings, Inc.), Credit Agreement (Bread Financial Holdings, Inc.)
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) Commitment Fees fees shall cease to accrue on the unfunded unused portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(asubsection 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 each Bank) or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section subsection 10.1); provided, 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 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 such Defaulting Bank’s Commitment may not be increased or Section 10.1 in a manner that would alter the pro rata sharing of payments required thereby, or extended without its consent and (ii) causing the reduction of the percentage specified in the definition of Majority Banksprincipal amount of, or (iii) causing interest or fees payable on, Loans may not be reduced or excused or the consent scheduled date of payment may not be postponed as to the assignment or transfer by the Borrower of any of its respective rights and obligations under this Agreement and the other Loan Documents, in each case such Defaulting Bank without the consent of such Defaulting Bank;’s consent; and
(c) if any L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;
(i) all or any part of the L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, but only to the extent the sum of all non-Defaulting Banks’ 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, 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, 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, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 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 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 Administrative Agent, the Borrower Agent and the Issuing Banks Company each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks (other than CAF Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Commitment Percentage. The rights and remedies against, and ; provided that no adjustments will be made retroactively with respect to, to fees accrued or payments made by or on behalf of the Company while such Bank was a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 2 contracts
Sources: 364 Day Revolving Credit Agreement (Humana Inc), 364 Day Revolving Credit Agreement (Humana Inc)
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) Commitment Fees shall cease Notwithstanding anything to accrue on the unfunded portion contrary contained herein, the Maximum Credit Amount of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions of Credit of such a Defaulting Bank shall not be included in determining whether all Banks, the Majority Banks, the Required Banks (or each Bank) or the Super Majority 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, amendment or waiver or other modification pursuant to Section 10.114.2); providedprovided that, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of such Bank all Banks or each affected Bank which affects such Defaulting Bank differently than other affected thereby if Banks shall require the consent of such Bank is an affected Defaulting Bank; provided, further, and provided further that there in no event shall not be any amendment, modification or waiver (i) the Commitment, Elected Commitment or Maximum Credit Amount of any provision Defaulting Bank be increased without the consent of Section 4.2 or Section 10.1 in a manner that would alter the pro rata sharing of payments required therebysuch Defaulting Bank, or (ii) causing the reduction Termination Date or any date fixed for any payment of interest on the percentage specified in the definition of Majority Banks, Loans 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 Loan Documents, in each case fees hereunder be postponed without the consent of such Defaulting Bank;.
(cb) if If any L/C Obligations exist at Bank shall fail to make any payment referenced in clause (a) of the time such Bank becomes a definition of “Defaulting Bank then;
Bank”, then Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) all or apply any part of amounts thereafter received by Administrative Agent for the L/C Exposure account of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, but only to the extent the sum of all non-Defaulting Banks’ 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, 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, cash collateralize and 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 Administrative Agent 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 Issuer to satisfy 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 obligations hereunder until all 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 unsatisfied obligations are fully paid, and/or (ii) abovehold any such amounts in a segregated account as cash collateral for, thenand application to, without prejudice to any rights or remedies future funding obligations of any Issuing Bank or any other such Bank hereunder, all Letter ; in the case 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 each 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, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 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 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) 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)) above, a “Disregarded Bank”), the Issuing Bank in any order as determined by Administrative Agent in its discretion.
(c) Borrower shall not be required obligated to issue, amend or increase pay any Letter of Credit, unless the Issuing Banks are satisfied that the Disregarded Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments 's ratable share of the non-Disregarded Banks andfees described in Section 2.11, Section 2.12 or Section 2.13 (notwithstanding anything to the extent contrary in such 100% coverage is not achieved, by cash collateral which will be provided by sections) for the Borrower in period commencing on the manner consistent with Section 2.8(c), and participating interests in 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 day such Disregarded Defaulting Bank shall not participate therein). In the event that the Administrative Agent, the Borrower and the Issuing Banks each agrees that becomes a Defaulting Bank has adequately remedied all matters that caused and continuing for so long as such Bank continues to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Brigham Minerals, Inc.), Credit Agreement (Brigham Minerals, Inc.)
Defaulting Banks. Notwithstanding anything contained in Sections 2.8, 2.9 or any other 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) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions then: all Letters of Credit Outstanding and Swing Loans outstanding at such time, and all Letters of such Defaulting Bank shall not be included in determining whether all Banks (Credit issued or each Bank) 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 10.1); provided, that this clause (b) shall not apply to the vote of Swing Loans made while there exists 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 Loan Documents, in each case without the consent of such Bank;
(c) if any L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;
(i) all or any part of the L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving PercentagesRatable 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’ Outstanding Extensions ' 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 plus Outstanding at such Defaulting Bank’s L/C Exposure time does not exceed the total of all non-Defaulting Banks’ Commitments;
' 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) if 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 clause (i) above the preceding sentence cannot, or can only partially, be effected, the Borrower shall, Borrowers shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, (1) first, prepay outstanding Swing Loans and (2) 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 's portion of Letters of Credit Outstanding (in each case, 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 immediately preceding sentence). To the extent such L/C Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion Letters of such Defaulting Bank’s L/C Exposure Credit Outstanding and Swing Loans are reallocated pursuant to clause (ii) abovethis Section 2.14, then the Borrower shall not be required fees payable to pay any fees to such Defaulting Bank the Banks pursuant to Section 2.5(c2.8.2 (but not Section 2.3) 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 adjusted in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocation; and
(v) if all or any ' Ratable Shares. To the extent a portion of such the Defaulting Bank’s L/C Exposure is neither reallocated nor 's Letters of Credit outstanding are cash collateralized pursuant to clause (i) or (ii2) above, the Borrowers shall not be obligated to pay any fees to or for the account of such Defaulting Bank 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 Section 2.14, or the Defaulting Bank's Ratable Share of Letters of Credit Outstanding have not been cash collateralized, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Bank hereunder, all Letter of Credit participation fees Commitment Fees that otherwise would have been payable to such Defaulting Bank under Section 2.5(c)(i(solely with respect to the portion of such Defaulting Bank's Commitment that was utilized by such Letters of Credit Outstanding) and Letter of Credit Fees with respect to such Defaulting Bank’s unreallocated L/C Exposure 's Ratable Share of the Letters of Credit Outstanding shall be payable to the Issuing BanksBank. Subject to Section 11.23, ratably based on the portion nothing contained in this Section or elsewhere in this Agreement and no reallocation 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 any Defaulting Bank, no Issuing Bank 's Ratable Share of any obligation hereunder shall be required to issue, amend or increase any Letter of Credit, unless 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 issued or increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.8(c)(i) (and relieve such Defaulting Bank shall not participate therein). If (i) a Bankruptcy Event or a Bail-In Action with respect of its obligation to a Parent fund any portion of any amount owed by such Defaulting Bank shall occur following the date hereof and for so long as such event shall continue or (ii) the Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations to extend credit generally (such Bank referenced in clauses (i) and (ii), a “Disregarded Bank”), the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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)hereunder. In the event that the Administrative Agent, the Borrower Borrower, and the Issuing Banks each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures Letters of Credit Outstanding and the Banks Swing Loans outstanding shall be readjusted to reflect the inclusion of such Bank’s Commitment, 's Revolving Credit Commitment and on such date date, such Bank shall purchase at par such of the Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting BankRatable Share.
Appears in 2 contracts
Sources: Credit Agreement (Triumph Group Inc), Credit Agreement (Triumph Group Inc)
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) Commitment Fees shall cease Notwithstanding anything to accrue on the unfunded portion contrary contained herein, the Maximum Credit Amount of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions of Credit of such a Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority 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, amendment or waiver or other modification pursuant to Section 10.114.2); providedprovided that, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of such Bank all Banks or each affected Bank which affects such Defaulting Bank differently than other affected thereby if Banks shall require the consent of such Bank is an affected Defaulting Bank; provided, further, and provided further that there in no event shall not be any amendment, modification or waiver (i) the Commitment or Maximum Credit Amount of any provision Defaulting Bank be increased without the consent of Section 4.2 or Section 10.1 in a manner that would alter the pro rata sharing of payments required therebysuch Defaulting Bank, or (ii) causing the reduction Termination Date or any date fixed for any payment of principal of or interest on the percentage specified in the definition of Majority Banks, Loan 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 Loan Documents, in each case fees hereunder be postponed without the consent of such Defaulting Bank;.
(cb) if If any L/C Obligations exist at Bank shall fail to make any payment referenced in clause (a) or (b) of the time such Bank becomes a definition of “Defaulting Bank then;
Bank”, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) all or apply any part of the L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, but only to the extent the sum of all non-Defaulting Banks’ 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, or can only partially, be effected, the Borrower shall, within two Business Days following the Borrower’s receipt of written notice amounts thereafter received by the Administrative Agent, cash collateralize Agent for the account of such Bank and for the benefit of the applicable Issuing Banks only the BorrowerAdministrative Agent or any Letter of Credit Issuer to satisfy such Bank’s obligations corresponding to hereunder until all 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 unsatisfied obligations are fully paid, and/or (ii) abovehold any such amounts in a segregated account as cash collateral for, the Borrower shall not be required to pay and application to, 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 future funding obligations 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 ; in the case 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 each 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, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 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 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) 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)) above, a “Disregarded Bank”), in any order as determined by the Issuing Bank Administrative Agent in its discretion.
(c) Borrower shall not be required obligated to issue, amend or increase pay the Administrative Agent any Letter of Credit, unless the Issuing Banks are satisfied that the Disregarded Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments ratable share of the non-Disregarded Banks andfees described in Sections 2.11, 2.12 or 2.13 (notwithstanding anything to the extent contrary in such 100% coverage is not achieved, by cash collateral which will be provided by sections) for the Borrower in period commencing on the manner consistent with Section 2.8(c), and participating interests in 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 day such Disregarded Defaulting Bank shall not participate therein). In the event that the Administrative Agent, the Borrower and the Issuing Banks each agrees that becomes a Defaulting Bank has adequately remedied all matters that caused and continuing for so long as such Bank continues to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Laredo Petroleum - Dallas, Inc.), Credit Agreement (Laredo Petroleum Holdings, Inc.)
Defaulting Banks. (a) 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:
(ab) Commitment Fees fees shall cease to accrue on the unfunded portion of the Available Commitment of such Defaulting Bank pursuant to Section 3.2(asubsection 2.4(a);
(bc) the Commitment and Outstanding Extensions of Credit Loans of such Defaulting Bank shall not be included in determining whether all Banks, the Majority Banks (or each Bank) or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendmentamendment or waiver pursuant to
subsection 10.1) provided that any waiver, waiver amendment or other modification pursuant to Section 10.1); 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 all Banks or each affected Bank which affects such Defaulting Bank differently than other affected thereby if such Bank is an affected Bank; provided, further, that there Banks 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 Loan Documents, in each case without require the consent of such Defaulting Bank;; and
(cd) if any L/C Obligations exist at the time such a Bank becomes a Defaulting Bank then;:
(i) all or any part of the such L/C Exposure of such Defaulting Bank Obligations shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, Commitment Percentages but only to the extent the sum of all non-Defaulting Banks’ Outstanding Extensions of Credit Loans plus non-Defaulting Banks’ L/C Obligations plus such Defaulting Bank’s Commitment Percentage of the L/C Exposure Obligations does not exceed the total of all non-Defaulting Banks’ CommitmentsCommitments 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 shallshall deposit, within two five Business Days following the Borrower’s after its receipt of written notice such request, in a cash collateral account opened by the Administrative Agent, cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding in an amount requested in such notice, such amount not to exceed such Defaulting Bank’s Commitment Percentage of the L/C Exposure (after giving effect Obligations at the time of such request attributable to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 8.2 Letters of Credit issued by such Issuing Bank for so long as the account of such L/C Exposure is outstandingBorrower;
(iii) if amounts deposited pursuant to clause (ii) above at the Borrower 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 collateralizes collateralize any portion of such Defaulting Bank’s L/C Exposure Obligations pursuant to clause (ii) above, the Borrower Borrowers shall not be required to pay any Letter of Credit fees pursuant to Section 2.26(c) to such Defaulting Bank pursuant to Section 2.5(c) with respect to such Defaulting Bank’s L/C Exposure Obligations during the period such Defaulting Bank’s L/C Exposure is Obligations are cash collateralized;
(ivv) if all or any portion of such Defaulting Bank’s L/C Exposure is Obligations are 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 shall be adjusted 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) aboveCommitment Percentages;
(de) so long as such any Bank is a Defaulting Bank, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Exposure, related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower Company in accordance with Section 2.8(c2.23(d), 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 2.8(c)(i2.26(d)(i) (and such Defaulting Bank Banks shall not participate therein). If ;
(f) any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to subsection 10.6 but excluding subsection 2.19) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent, in the following order of priority: (i) a Bankruptcy Event or a Bail-In Action with respect first, to a Parent the payment of any amounts owing by such Defaulting Bank shall occur following to the date hereof and for so long as such event shall continue or 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 has a good faith belief that in respect of any Bank has defaulted existing or future participating interest in fulfilling its obligations to extend credit generally (such Bank referenced in clauses (i) and (ii), a “Disregarded Bank”), the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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(iv) fourth, to the extent funding of any Loan in respect of which such 100% coverage is not achievedDefaulting 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 which will be provided by for future funding obligations of the Borrower Defaulting Bank in respect of any Loans under this Agreement. The rights and remedies against a Defaulting Bank under this subsection 2.23 are in addition to other rights and remedies that the manner consistent with Section 2.8(c), and participating interests in 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 Borrowers may have against such Disregarded Bank shall not participate therein)Defaulting Bank. In the event and on the date that the Administrative Agent, the Borrower Company and the Issuing Banks each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures Obligations of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment, Commitment and on such date such Bank shall purchase at par such of the Revolving Loans of the other Banks (other than Competitive Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights Commitment Percentage and remedies against, and with respect to, such Bank shall no longer be a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Deere & Co), Credit Agreement (Deere John Capital Corp)
Defaulting Banks. Notwithstanding anything contained in Sections 2.8, 2.9 or any other 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) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions then: all Letters of Credit Outstanding and Swing Loans outstanding at such time, and all Letters of such Defaulting Bank shall not be included in determining whether all Banks (Credit issued or each Bank) 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 10.1); provided, that this clause (b) shall not apply to the vote of Swing Loans made while there exists 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 Loan Documents, in each case without the consent of such Bank;
(c) if any L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;
(i) all or any part of the L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving PercentagesRatable 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’ Outstanding Extensions 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 plus Outstanding at such Defaulting Bank’s L/C Exposure time does not exceed the total of all non-Defaulting Banks’ Commitments;
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) if 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 clause (i) above the preceding sentence cannot, or can only partially, be effected, the Borrower shall, Borrowers shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, (1) first, prepay outstanding Swing Loans and (2) 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 portion of Letters of Credit Outstanding (in each case, 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 immediately preceding sentence). To the extent such L/C Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion Letters of such Defaulting Bank’s L/C Exposure Credit Outstanding and Swing Loans are reallocated pursuant to clause (ii) abovethis Section 2.14, then the Borrower shall not be required fees payable to pay any fees to such Defaulting Bank the Banks pursuant to Section 2.5(c2.8.2 (but not Section 2.3) 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 adjusted in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocation; and
(v) if all or any Ratable Shares. To the extent a portion of such the Defaulting Bank’s L/C Exposure is neither reallocated nor Letters of Credit outstanding are cash collateralized pursuant to clause (i) or (ii2) above, the Borrowers shall not be obligated to pay any fees to or for the account of such Defaulting Bank 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 Section 2.14, or the Defaulting Bank’s Ratable Share of Letters of Credit Outstanding have not been cash collateralized, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Bank hereunder, all Letter of Credit participation fees Commitment Fees that otherwise would have been payable to such Defaulting Bank under Section 2.5(c)(i(solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such Letters of Credit Outstanding) and Letter of Credit Fees with respect to such Defaulting Bank’s unreallocated L/C Exposure Ratable Share of the Letters of Credit Outstanding shall be payable to the Issuing BanksBank. Subject to Section 11.23, ratably based on the portion nothing contained in this Section or elsewhere in this Agreement and no reallocation 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, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are satisfied that the Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments Ratable Share 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 issued or increased Letter of Credit obligation hereunder shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.8(c)(i) (and relieve such Defaulting Bank shall not participate therein). If (i) a Bankruptcy Event or a Bail-In Action with respect of its obligation to a Parent fund any portion of any amount owed by such Defaulting Bank shall occur following the date hereof and for so long as such event shall continue or (ii) the Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations to extend credit generally (such Bank referenced in clauses (i) and (ii), a “Disregarded Bank”), the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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)hereunder. In the event that the Administrative Agent, the Borrower Borrower, and the Issuing Banks each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures Letters of Credit Outstanding and the Banks Swing Loans outstanding shall be readjusted to reflect the inclusion of such Bank’s Commitment, Revolving Credit Commitment and on such date date, such Bank shall purchase at par such of the Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting BankRatable Share.
Appears in 2 contracts
Sources: Credit Agreement (Triumph Group Inc), Credit Agreement (Triumph Group Inc)
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) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions of Credit of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) 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 10.1); 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 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 Loan Documents, in each case without the consent of such Bank;
(c) if any Swingline Exposure or L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;
(i) all or any part of the Swingline Exposure and L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, but only to the extent the sum of 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 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) 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 Administrative Agent, the Borrower Borrower, the Swingline Lender and the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Swingline Exposures and L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each BankLender, each Issuing Bank Bank, the Swingline Lender or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Centerpoint Energy Houston Electric LLC), Credit Agreement (Centerpoint Energy Houston Electric LLC)
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, if (a) If any Bank becomes with a Revolving Credit Commitment becomes, and during the period it remains, a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions of Credit of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendmentapply, waiver or other modification pursuant to Section 10.1); provided, that this clause (b) shall not apply notwithstanding anything to the vote of a Defaulting Bank contrary 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 Loan Documents, in each case without the consent of such Bank;
(c) if any L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;Agreement:
(i) so long as no Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of the L/C Exposure of such Defaulting Bank shall Bank’s participation in Letter of Credit Outstandings and Swing Loans will, subject to the limitation in the proviso below, automatically be reallocated (effective as of no later than one (1) Business Day after the date Administrative Agent has actual knowledge that such Bank becomes has become a Defaulting Bank) among the nonNon-Defaulting Banks pro rata in accordance with their respective Revolver Percentages (calculated as if the Defaulting Bank’s Revolving Percentages, but only Credit Commitment was reduced to the extent zero and each Non-Defaulting Bank’s Revolving Credit Commitment had been increased proportionately); provided that the sum of all noneach Non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s L/C total Revolving Credit Exposure does may not in any event exceed the total Revolving Credit Commitment of all nonsuch Non-Defaulting Banks’ Commitments;Bank as in effect at the time of such reallocation; and
(ii) if to 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, 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 extent that any portion (the “unreallocated portion”) of such Defaulting Bank’s L/C Exposure pursuant to clause (ii) above, the Borrower shall participation in Letter of Credit Outstandings and Swing Loans cannot 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) aboveabove for any reason, then the Borrower will, not later than two (2) Business Days after demand by the Administrative Agent (at the direction of any Letter of Credit participation fees that otherwise would have been payable Issuer and/or the Swing Lender), (y) Cash Collateralize the obligations of the Borrower to such Defaulting Bank pursuant to Section 2.5(c)(i) with Letter of Credit Issuer or the Swing Lender in respect to of such Defaulting Bank’s reallocated L/C Exposure shall be payable exposure, as the case may be, in an amount at least equal 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 aggregate amount of the unreallocated portion of such Defaulting Bank’s L/C Exposure is neither reallocated nor cash collateralized pursuant to clause (i) participation in Letter of Credit Outstandings and Swing Loans or (iiz) abovemake other arrangements satisfactory to the Administrative Agent, then, without prejudice the Letter of Credit Issuer and the Swing Lender in their sole discretion to protect them against the risk of non-payment by such Defaulting Bank; provided that neither any rights such reallocation nor any payment by a Non-Defaulting Bank pursuant thereto nor any such Cash Collateralization or remedies reduction will constitute a waiver or release of any Issuing Bank claim the Borrower, the Administrative Agent, a Letter of Credit Issuer, the Swing Lender or any other Bank hereundermay have against such Defaulting Bank or cause such Defaulting Bank to be a Non-Defaulting Bank.
(b) If the Borrower, all the Administrative Agent, the Letter of Credit participation fees Issuers and the Swing Lender agree in writing in their discretion that otherwise would have been payable to such any Defaulting Bank has ceased 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, that Bank will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Banks or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Loans to be held pro rata by the Banks in accordance with their Percentage under the applicable Credit without giving effect to Section 2.5(c)(i) 2.17(a), whereupon such Bank will cease to be a Defaulting Bank; provided that no adjustments will be made retroactively with respect to such fees accrued or payments made by or on behalf of the Borrower while that Bank was a Defaulting Bank’s unreallocated L/C Exposure shall be payable to the Issuing Banks; and provided, ratably based on the portion of such L/C Exposure attributable to Letters of Credit issued by each Issuing Bankfurther, until and 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 that such L/C Exposure is reallocated and/or cash collateralized pursuant to clause (i) or (ii) above;Bank’s having been a Defaulting Bank.
(dc) so So long as such any Bank is a Defaulting Bank, no Issuing Bank shall Letter of Credit Issuer will be required to issue, amend amend, extend, renew or increase any Letter of Credit, Credit unless the Issuing Banks are it is reasonably satisfied that the Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered by Borrower has complied with the Commitments requirements 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(c2A.1(a)(iii), 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 2.8(c)(i) (and such Defaulting Bank shall not participate therein). 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 Administrative Agent, the Borrower and the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 2 contracts
Sources: Credit Agreement (Alliance Data Systems Corp), Credit Agreement (Alliance Data Systems Corp)
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, if (a) If any Bank becomes with a Revolving Credit Commitment becomes, and during the period it remains, a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions of Credit of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendmentapply, waiver or other modification pursuant to Section 10.1); provided, that this clause (b) shall not apply notwithstanding anything to the vote of a Defaulting Bank contrary 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 Loan Documents, in each case without the consent of such Bank;
(c) if any L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;Agreement:
(i) so long as no Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of the L/C Exposure of such Defaulting Bank shall Bank’s participation in Letter of Credit Outstandings and Swing Loans will, subject to the limitation in the proviso below, automatically be reallocated (effective as of no later than one (1) Business Day after the date Administrative Agent has actual knowledge that such Bank becomes has become a Defaulting Bank) among the nonNon-Defaulting Banks pro rata in accordance with their respective Revolver Percentages (calculated as if the Defaulting Bank’s Revolving Percentages, but only Credit Commitment was reduced to zero and each Non-Defaulting Bank’s Revolving Credit Commitment had been increased proportionately); provided that the sum of each Non-Defaulting Bank’s total Revolving Credit Exposure may not in any event exceed the Revolving Credit Commitment of such Non-Defaulting Bank as in effect at the time of such reallocation; and
(ii) to the extent that any portion (the sum “unreallocated portion”) of all non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s L/C Exposure does participation in Letter of Credit Outstandings and Swing Loans cannot 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, 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 reallocated pursuant to clause (i) above) in accordance with the procedures set forth in Section 8.2 above for so long as such L/C Exposure is outstanding;
(iii) if any reason, the Borrower cash collateralizes will, not later than two (2) Business Days after demand by the Administrative Agent (at the direction of any Letter of Credit Issuer and/or the Swing Lender), (y) Cash Collateralize the obligations of the Borrower to such Letter of Credit Issuer or the Swing Lender in respect of such exposure, as the case may be, in an amount at least equal to the aggregate amount of the unreallocated portion of such Defaulting Bank’s L/C Exposure participation in Letter of Credit Outstandings and Swing Loans or (z) make other arrangements satisfactory to the Administrative Agent, the Letter of Credit Issuer and the Swing Lender in their sole discretion to protect them against the risk of non-payment by such Defaulting Bank; 120175877_7 145870580_7 provided that, subject to Section 10.17, neither any such reallocation nor any payment by a Non-Defaulting Bank pursuant thereto nor any such Cash Collateralization or reduction will constitute a waiver or release of any claim the Borrower, the Administrative Agent, a Letter of Credit Issuer, the Swing Lender or any other Bank may have against such Defaulting Bank or cause such Defaulting Bank to be a Non-Defaulting Bank.
(b) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of a Defaulting Bank (whether voluntary or mandatory, at maturity, pursuant to clause (iiArticle 6 or otherwise) above, or received by the Borrower shall not be required to pay any fees to such Administrative Agent from a Defaulting Bank pursuant to Section 2.5(c10.4 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 the Letter of Credit Issuer or the Swing Lender hereunder; third, to Cash Collateralize the unreallocated portion of such Defaulting Bank’s participation in Letter of Credit Outstandings and Swing Loans in accordance with Section 2.17(a)(ii); fourth, if such Defaulting Bank is a CAD Non-Funding Bank, to the payment of any amounts owing by such Defaulting Bank to the CAD Fronting Bank as provided in Section 2.1(h)(ii); fifth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan or funded participation 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; sixth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy such Defaulting Bank’s potential future funding obligations with respect to Loans and funded participations under this Agreement and (B) Cash Collateralize future unreallocated portions of such Defaulting Bank’s participation in Letter of Credit Outstandings and Swing Loans with respect to future Letters of Credit and Swing Loans issued under this Agreement in accordance with Section 2.17(a)(ii); seventh, to the payment of any amounts owing to the Banks, the Letter of Credit Issuer or the Swing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Bank, such Letter of Credit Issuer or the Swing Lender 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 or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting 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 (1) such payment is a payment of the principal amount of any Loans or funded participations in Letters of Credit or Swing Loans in respect of which such Defaulting Bank has not fully funded its appropriate share, and (2) such Loans were made or the related Letters of Credit or Swing Loans were issued 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 funded participations in Letters of Credit or Swing Loans owed to, all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loans of, or funded participations in Letters of Credit or Swing Loans owed to, such Defaulting Bank until such time as all Loans and funded and unfunded participations in Letter of Credit Outstandings and Swing Loans are held by the Banks pro rata in accordance with the Revolving Credit Commitments under the applicable Revolving Credit without giving effect to Section 2.17(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 2.17(b) shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
(c) If the Borrower, the Administrative Agent, the Letter of Credit Issuers and the Swing Lender agree in writing in their discretion that any Defaulting Bank has ceased 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, that Bank will, to the extent applicable, 120175877_7 145870580_7 purchase at par that portion of outstanding Loans of the other Banks or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Loans to be held pro rata by the Banks in accordance with their Percentage under the applicable Credit without giving effect to Section 2.17(a), whereupon such Bank will cease to be a Defaulting Bank; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Non-Defaulting Bank will constitute a waiver or release of any claim of any party hereunder arising from that Bank’s having been a Defaulting Bank.
(d) So long as any Bank is a Defaulting Bank, no Letter of Credit Issuer will be required to issue, amend, extend, renew or increase any Letter of Credit unless it is reasonably satisfied that the Borrower has complied with the requirements of Section 2A.1(a)(iii).
(e) No Defaulting Bank shall be entitled to receive any commitment fee pursuant to Section 2.7(a) or Letter of Credit Fee for any period during which that Bank is a Defaulting Bank. With respect to any commitment fee pursuant to Section 2.7(a) or Letter of Credit Fee not required to be paid to any Defaulting Bank pursuant to this clause (e), the Borrower shall (x) pay to each Non-Defaulting Bank that portion of any such fee otherwise payable to such Defaulting Bank with respect to such Defaulting Bank’s L/C Exposure during the period participation in Letters of Credit or Swing Loans that has been reallocated to such Non-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 Bank pursuant to clause Section 2.17(a)(i), (iy) above, then the pay to each Letter of Credit participation fees that Issuer and Swing Lender, as applicable, the amount of any such fee otherwise would have been payable to such Defaulting Bank pursuant to Section 2.5(c)(i) with respect the extent allocable to such Letter of Credit Issuer or Swing Lender’s Fronting Exposure 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, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 issued or increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.8(c)(i(z) (and such Defaulting Bank shall not participate therein). 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) 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 Issuing Bank shall not be required to issue, amend or increase pay the remaining amount of any Letter of Credit, unless 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 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 Administrative Agent, the Borrower and the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bankfee.
Appears in 1 contract
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) Commitment Fees 2.21.1. The Unused Portion Fee shall cease to accrue on the unfunded portion of the Revolving Credit Commitment of such Defaulting Bank pursuant to Section 3.2(a);2.9.
(b) the 2.21.2. The Revolving Credit Commitment and Outstanding Extensions of Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.111.1); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of such Bank all Banks or each affected Bank which affects such Defaulting Bank differently than any other 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 Loan Documents, in each case without require the consent of such Defaulting Bank;.
(c) if 2.21.3. If any Swing Line Loans or L/C Obligations exist or are outstanding at the time such a Bank becomes a Defaulting Bank Bank, then;:
(ia) all or any part of the such Defaulting Bank’s share of participations in such Swing Line Loans and L/C Exposure of such Defaulting Bank Obligations shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving PercentagesPro Rata Shares, but only to the extent (x) the sum of all non-Defaulting Banks’ Outstanding Extensions of Bank’s Revolving Credit Exposures plus such Defaulting Bank’s share of participations in such Swing Line Loans and L/C Exposure Obligations does not exceed the total of all non-Defaulting Banks’ CommitmentsCommitments and (y) the conditions set forth in Section 3.2 are satisfied at such time;
(iib) if the reallocation described in clause (ia) above cannot, not be effected or can only partially, partially be effected, the Borrower shall, shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative AgentAgent (x) first, prepay such Swing Line Loans and (y) second, cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Bank’s share of outstanding L/C Exposure Obligations (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with the procedures set forth in Section 8.2 for so long as such L/C Exposure is Obligations are outstanding;
(iiic) if the Borrower cash collateralizes any portion of such Defaulting Bank’s share of outstanding L/C Exposure Obligations pursuant to clause (ii) abovethis Section 2.21.3, the Borrower shall not be required to pay any fees with respect to such Defaulting Bank pursuant to Section 2.5(c) with respect to such Defaulting Bank’s L/C Exposure 2.2.4 during the period such Defaulting Bank’s share of outstanding L/C Exposure Obligations is cash collateralized;
(ivd) if all or any portion the share of such Defaulting Bank’s the outstanding L/C Exposure Obligations of the non-Defaulting Bank is reallocated pursuant to clause (i) abovethis Section 2.21.3, then the Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank the Banks pursuant to Section 2.5(c)(i) with respect to such Defaulting Bank’s reallocated L/C Exposure 2.2.4 and Section 2.9 shall be payable to the non-Defaulting Banks adjusted in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocationPro Rata Shares; and
(ve) if all or any portion of such Defaulting Bank’s share of the outstanding L/C Exposure Obligations is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.21.3, then, without prejudice to any rights or remedies of the L/C Issuer, any Issuing Bank or any other Bank the Borrower hereunder, all Letter of Credit participation fees Unused Portion Fee that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Revolving Commitment that was utilized by such outstanding L/C Obligations) and letter of credit fees payable under Section 2.5(c)(i) 2.2.4 with respect to such Defaulting Bank’s unreallocated L/C Exposure Bank shall be payable to the Issuing Banks, ratably based on the portion of Bank until such L/C Exposure attributable to Letters of Credit issued by each Issuing Bank, until and to the extent that such L/C Exposure share is reallocated and/or cash collateralized pursuant to clause (i) or (ii) above;and/or reallocated.
(d) so 2.21.4. So long as such any Bank is a Defaulting Bank, no Issuing Bank the Swing Line Lender shall not be required to issue, amend or increase fund any Letter of Credit, unless Swing Line Loan 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 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 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) 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 Issuing Bank Issuer shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are it is satisfied that the Disregarded Bank’s then outstanding L/C Exposure, related exposure will be 100% covered by the Revolving Credit Commitments of the non-Disregarded Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower in the manner consistent accordance with Section 2.8(c2.21.3), and participating interests in any such newly issued or increased Letter of Credit or newly made Swing Line Loan shall be allocated among the non-Disregarded Defaulting Banks in a manner consistent with Section 2.8(c) 2.21.3 (and such Disregarded the Defaulting Bank shall not participate therein).
2.21.5. If any Defaulting Bank shall fail to make any payment required to be made by it pursuant to this Agreement, 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 Defaulting Bank to satisfy such Defaulting Bank’s funding 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 Defaulting Bank. In the event that the Administrative Agent, the Borrower Borrower, the L/C Bank and the Issuing Banks Swing Line Lender 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 all outstanding Swing Line Loans and L/C Exposures of the Banks Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment, Revolving Credit Commitment and on such date such Bank shall purchase at par such of the Revolving Credit Loans of the other Banks (other than Swing Line Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Credit Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting BankPro Rata Share.
Appears in 1 contract
Sources: Credit Agreement (Saia Inc)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement or any other Loan Document 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 any Issuing Bank or the Lead Borrower), the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(ai) Commitment Fees no commitment fee shall cease to accrue on the unfunded portion unused amount of the any Commitment of such any Defaulting Bank pursuant to Section 3.2(a2.8(a);
(bii) the Commitment and Outstanding Extensions Revolving Exposure of Credit of such each Defaulting Bank shall not be included disregarded in determining whether all the requisite Banks (or each Bank) or the Majority Banks shall have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendmentwaiver, waiver amendment or other modification pursuant to Section 10.19.5); providedprovided that any waiver, that amendment, or other modification that, disregarding the effect of this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendmentii), waiver or other modification requiring requires the consent of such Bank or each Bank directly affected thereby if such pursuant to clause (a), (b) or (c) of Section 9.5 shall continue to require the consent of each Defaulting Bank is an directly affected Bankthereby in accordance with the terms hereof; provided, further, that there shall not be any amendmentwaiver, amendment or other modification of this Section 2.20(a)(ii) or waiver clause (ia), (b) or (c) of Section 9.5 at any provision of Section 4.2 or Section 10.1 in time that 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 Loan Documents, in each case without Bank is a Defaulting Bank shall require the consent of such BankDefaulting Bank if such Defaulting Bank would be directly adversely affected thereby;
(ciii) if any L/C Obligations exist LC Exposure exists at the time such any Bank becomes a Defaulting Bank (each Letter of Credit to which such LC Exposure is attributable being referred to as a “Reallocated Letter of Credit”), then:
(A) subject to clause (B) below, the participation of each Non-Defaulting Bank in each Reallocated Letter of Credit shall be adjusted to be determined under Section 2.18(d) on the basis of such Bank’s Adjusted Applicable Percentage (and all references in Section 2.18 to “Applicable Percentage” shall be deemed to be references to “Adjusted Applicable Percentage”);
(iB) all or notwithstanding the foregoing:
(1) if any part of the L/C Exposure of such Bank that becomes a Defaulting Bank shall be reallocated an Issuing Bank or an Affiliate thereof, no adjustment shall be made pursuant to clause (effective A) above with respect to participations in any Letter of Credit issued by such Issuing Bank;
(2) if all the Defaulting Banks’ Applicable Percentage of the LC Exposure attributable to the Reallocated Letters of Credit (the “Defaulting Bank LC Exposure”) exceeds the unused portion of the Commitments of the Non-Defaulting Banks as of the date time the adjustments are to be made pursuant to clause (A) above (such Bank becomes a Defaulting Bank) among unused portion being referred to as the non“Maximum Incremental Participation Amount”), then the incremental amount of participations acquired by the Non-Defaulting Banks in accordance with their respective Revolving Percentages, but under clause (A) above (the “Incremental LC Participations”) shall not exceed at any time the Maximum Incremental Participation Amount;
(3) adjustments under Section 2.20(a)(iii)(A) and (B) above shall only be made to the extent that, after giving effect to such adjustments, the sum Revolving Exposure of all nonany Non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s L/C Exposure does Bank shall not exceed its Commitment; and
(4) no adjustment shall be made under Section 2.20(a)(iii)(A) or (B) above if, at the total time such adjustment is made, an Event of all non-Defaulting Banks’ CommitmentsDefault has occurred and is continuing;
(iiC) if the reallocation described in clause (i) above cannotDefaulting Bank LC Exposure exceeds the Maximum Incremental Participation Amount, then the applicable Borrower or can only partially, be effected, the applicable Additional Borrower shall, within two five Domestic Business Days following the Borrower’s after receipt of written notice by to that effect from the Administrative Agent, cash collateralize for the benefit Reallocated Letters of Credit (in a manner and under documentation reasonably satisfactory to the Administrative Agent) in an aggregate amount equal to the excess, if any, of the Defaulting Bank LC Exposure over the Maximum Incremental Participation Amount or, if agreed to by the applicable Issuing Banks only Bank, enter into other arrangements with respect to the Reallocated Letters of Credit on terms mutually agreed between such Issuing Bank and the applicable Borrower or applicable Additional Borrower’s obligations corresponding to such Defaulting Bank’s L/C Exposure ;
(after giving effect to D) if any partial reallocation Reallocated Letter of Credit shall have been cash collateralized by the applicable Borrower or applicable Additional Borrower 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 (iiC) above, then (x) the applicable Borrower or applicable Additional Borrower shall not be required to pay any letter of credit participation fees to such Defaulting Bank pursuant to Section 2.5(c2.8(b) with respect to the portion of such Reallocated Letter of Credit that is so cash collateralized and (y) to the extent any letter of credit participation fees are not required to be paid by reason of clause (x) above, the reduction in the amount of such fees shall be allocated to the Defaulting Bank’s L/C Exposure during the period such Defaulting Bank’s L/C Exposure is cash collateralizedBanks;
(ivE) if all or any portion of such Defaulting Bank’s L/C Exposure is reallocated an adjustment shall have been made pursuant to clause (iA) aboveabove to the participations of the Non-Defaulting Banks in Reallocated Letters of Credit, then the Letter letter of Credit credit participation fees that would otherwise would have been payable to such the Banks that are Defaulting Bank Banks pursuant to Section 2.5(c)(i2.8(b) with respect to the portion of such Defaulting Bank’s reallocated L/C Exposure Reallocated Letters of Credit equal to the Incremental LC Participations therein shall instead accrue for the accounts of, and be payable to to, the nonBanks that are Non-Defaulting Banks in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocation; andtheir Adjusted Applicable Percentages;
(vF) if all or the Defaulting Bank LC Exposure at any time shall exceed the sum of the Incremental LC Participations at such time and the portion of such Defaulting Bank’s L/C Exposure is neither reallocated nor the Reallocated Letters of Credit cash collateralized at such time pursuant to clause (i) or (iiC) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Non-Defaulting Bank hereunder, all letter of credit participation fees payable to the Banks that are Defaulting Banks under Section 2.8(b) with respect to the portion of the Defaulting Bank LC Exposure equal to such excess shall instead accrue for the account of, and be payable to, the applicable Issuing Bank that shall have issued the Reallocated Letters of Credit; and
(G) the Revolving Exposure of each Non-Defaulting Bank shall be determined after giving effect to the Incremental LC Participations acquired by such Bank under the foregoing clauses of this clause (iii);
(iv) in the event any Letter of Credit shall be issued or amended to increase the amount thereof, (A) the participations of the Non-Defaulting Banks therein shall be determined in the manner set forth in clause (iii)(A) above, as if such Letter of Credit shall have been a Reallocated Letter of Credit, and (B) letter of credit participation fees that would otherwise would have been payable to the Banks that are Defaulting Banks pursuant to Section 2.8(b) in respect of any such Defaulting Bank under Section 2.5(c)(i) with respect to such Defaulting Bank’s unreallocated L/C Exposure Letter of Credit 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 subject to clause (i) or (iiiii)(E) above;
(d) so long as such Bank is a Defaulting Bank; provided, however, that, notwithstanding anything to the contrary set forth herein, no Issuing Bank shall be required to issue, amend extend, renew or increase the amount of any Letter of Credit, Credit unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Exposure, Banks’ Applicable Percentage of the LC Exposure attributable to such Letter of Credit will be 100% entirely covered by the Commitments participations therein of the nonNon-Defaulting Banks and/or cash collateral or other arrangements satisfactory to such Issuing Bank provided by the applicable Borrower or applicable Additional Borrower (in a manner and under documentation satisfactory to such Issuing Bank); and
(v) any amount payable to or for the account of any Defaulting Bank in its capacity as a Bank hereunder (whether on account of principal, interest, fees or otherwise, and including any amounts payable to such Defaulting Bank pursuant to Sections 2.10 and 2.11, but excluding any amounts payable to such Defaulting Bank pursuant to Sections 2.13, 2.15, 2.17, 8.3 and 9.3) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, (A) be applied, at such time or times as may be determined by the Administrative Agent, (1) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, (2) second, to the payment of any amounts owing by such Defaulting Bank to each Issuing Bank in respect of such Defaulting Bank’s participations in Letters of Credit (and to the extent any such 100% coverage is not achievedamounts shall have been paid by Non-Defaulting Banks as a result of adjustments pursuant to clause (iii) above, by to reimburse such Non-Defaulting Banks for such amounts), (3) third, to cash collateralize participation obligations of such Defaulting Bank in respect of outstanding Letters of Credit (with the concurrent release of an equivalent amount any cash collateral which will be or other collateral security, if any, provided by the applicable Borrower pursuant to this Section) and (4) fourth, to the funding of such Defaulting Bank’s Applicable Percentage of any Borrowing in accordance with Section 2.8(c), and participating interests in any newly issued or increased Letter respect of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.8(c)(i) (and which such Defaulting Bank shall have failed to fund such share as required hereunder, (B) to the extent not participate therein). 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 applied as aforesaid, be held, if so long as such event shall continue or (ii) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, will be 100% covered determined by the Commitments Administrative Agent, as cash collateral for funding obligations of such Defaulting Bank in respect of future Loans hereunder, (C) to the non-Disregarded Banks andextent not applied or held as aforesaid, be applied, pro rata, to the payment of any amounts owing to any Borrower or the Non-Defaulting Banks as a result of any judgment of a court of competent jurisdiction obtained by any Borrower or any Non-Defaulting Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations hereunder and (D) to the extent not applied or held as aforesaid, be distributed to such 100% coverage is not achieved, Defaulting Bank or as otherwise directed 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 issued or increased Letter a court of Credit shall be allocated among the non-Disregarded Banks in a manner consistent with Section 2.8(ccompetent jurisdiction.
(b) (and such Disregarded Bank shall not participate therein). In the event that the Administrative Agent, the Borrower Issuing Banks and the Issuing Banks each agrees Borrowers shall have agreed that a Bank that is a Defaulting Bank has adequately remedied all matters that caused such Bank to be become a Defaulting Bank, then (i) such Bank shall cease to be a Defaulting Bank for all purposes hereof, (ii) the L/C Exposures obligations of the Banks to purchase participations in Letters of Credit under Section 2.18(d) shall be readjusted to reflect be determined on the inclusion basis of such Bank’s Commitment, Banks’ Applicable Percentages and on such date (iii) such Bank shall purchase at par such of the Revolving Loans of the other Banks as the Administrative Agent shall determine may to be necessary in order for such Bank the Loans to hold such Revolving Loans be held by the Banks in accordance with their Applicable Percentages.
(c) No Commitment of any Bank shall be increased or otherwise affected and, except as otherwise expressly provided in this Section, performance by any Borrower and any Additional Borrower of its Revolving Percentageobligations hereunder and under the other Loan Documents shall not be excused or otherwise modified as a result of the operation of this Section. The rights and remedies against, and with respect to, against a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all to other rights and remedies that any Borrower, any Additional Borrower, the Administrative Agent and each BankAgent, the Issuing Banks or any Non-Defaulting Bank may have against such Defaulting Bank (and, for the avoidance of doubt, each Issuing Non-Defaulting Bank or shall have a claim against any Defaulting Bank for any losses it may suffer as a result of the Borrower may at any time have against, or with respect to, such Defaulting Bankoperation of this Section).
Appears in 1 contract
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) Commitment Fees payable in accordance with Section 2.05(a) shall cease to accrue on the unfunded portion of the Commitment Amount of such Defaulting Bank pursuant to Section 3.2(a)Bank;
(b) the Commitment Amount and Outstanding Extensions of Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment, waiver waiver, or consent pursuant to Section 9.01); provided that any waiver, amendment, consent, or other modification pursuant that (i) reduces the principal of, or interest on, any reimbursement obligation or any fee or other amount payable to Section 10.1); provided, that this clause (b) shall not apply to the vote of a such Defaulting Bank in hereunder, (ii) increases such Defaulting Bank's Commitment Amount, (iii) extends the case Termination Date, (iv) postpones any date fixed for any payment of an amendmentprincipal of, waiver or interest on, any reimbursement obligation, fee or other modification requiring amount payable to such Defaulting Bank hereunder, or (iv) requires 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 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 Loan Documents, in each case without the consent of such Defaulting Bank;
(c) if any L/C Obligations exist Credit Exposure exists at the time such a Bank becomes a Defaulting Bank then;:
(i) all or any part of the L/C such Credit Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Banks’ Outstanding Extensions of ' Credit Exposures plus such Defaulting Bank’s L/C 's Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments' Commitment Amounts and (y) the conditions set forth in Section 3.02 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, each Applicant shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, Agent cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Bank’s L/C 's Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with a manner satisfactory to the procedures set forth Administrative Agent and the Issuing Bank in Section 8.2 their sole discretion for so long as such L/C Credit Exposure is outstanding;
(iii) if the Borrower any Applicant cash collateralizes any portion of such Defaulting Bank’s L/C 's Credit Exposure pursuant to clause (ii) aboveSection 2.12(c), the Borrower Applicants shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c2.05(b) with respect to such Defaulting Bank’s L/C 's Credit Exposure during the period such Defaulting Bank’s L/C 's Credit Exposure is cash collateralized;
(iv) if all or any portion the Credit Exposure 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 is reallocated pursuant to Section 2.12(c), then the fees payable to the Banks pursuant to Section 2.05(a) and Section 2.05(b) shall be adjusted in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocation' Pro Rata Shares; andor
(v) if all or any portion of such Defaulting Bank’s L/C 's Credit Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.12(c), then, without prejudice to any rights or remedies of any the 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)(i2.05(b) with respect to such Defaulting Bank’s unreallocated L/C 's Credit Exposure shall be payable to the Issuing Banks, ratably based on the portion of Bank until 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;and/or reallocated; and
(d) so long as such any Bank is a Defaulting Bank, no the Issuing Bank shall not be required to issue, amend amend, or increase any Letter of CreditLOC, unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Exposure, related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower applicable Applicant in accordance with Section 2.8(c2.12(c), and participating interests in any such newly issued or increased Letter of Credit LOC shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.8(c)(i2.12(c)(i) (and such Defaulting Bank shall not participate therein). 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 Administrative Agent, the Borrower Company, and the Issuing Banks Bank each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures Credit Exposure of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment, 's Commitment Amount and on such date such Bank shall purchase at par such of the Revolving Loans of the other Banks participations in outstanding LOCs and LOC Disbursements as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans participations in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting BankPro Rata Share.
Appears in 1 contract
Sources: Letter of Credit Facility Agreement (Sunpower 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) Commitment Fees 2.14.1. fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a)2.3 [Commitment Fees];
(b) 2.14.2. the Commitment and Outstanding Extensions of Credit outstanding Loans of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.110.1 [Modifications, Amendments or Waivers]); provided, that this clause (bii) 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 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 Loan Documents, in each case without the consent of such Bank;
(c) 2.14.3. if any L/C Swing Loans are outstanding or any Letter of Credit Obligations exist at the time such Bank becomes a Defaulting Bank Bank, then;:
(i) 2.14.3.1 all or any part of the L/C Exposure outstanding Swing Loans and Letter of Credit Obligations of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s L/C Exposure Dollar Equivalent Revolving Facility Usage does not exceed the total of all non-Defaulting Banks’ ' Revolving Credit Commitments, and (y) no Potential Default or Event of Default has occurred and is continuing at such time;
(ii) 2.14.3.2 if the reallocation described in clause (i) Section 2.14.3.1 above cannot, or can only partially, be effected, the Borrower shall, shall within two one (1) Business Days Day following the Borrower’s receipt of written notice by the Administrative AgentAgent (x) first, prepay such outstanding Swing Loans, and (y) second, cash collateralize for the benefit of the applicable Issuing Banks only Bank the Borrower’s 's obligations corresponding to such Defaulting Bank’s L/C Exposure 's Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (i) Section 2.14.3.1 above) in accordance with a deposit account held at the procedures set forth in Section 8.2 Administrative Agent for so long as such L/C Exposure is Letter of Credit Obligations are outstanding;
(iii) 2.14.3.3 if the Borrower cash collateralizes any portion of such Defaulting Bank’s L/C Exposure 's Letter of Credit Obligations pursuant to clause (ii) Section 2.14.3.2 above, the Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c) 2.9.2 [Letter of Credit Fees] with respect to such Defaulting Bank’s L/C Exposure 's Letter of Credit Obligations during the period such Defaulting Bank’s L/C Exposure is 's Letter of Credit Obligations are cash collateralized;
(iv) 2.14.3.4 if the Letter of Credit Obligations of the non-Defaulting Banks are reallocated pursuant to Section 2.14.3.1 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
2.14.3.5 if all or any portion of such Defaulting Bank’s L/C Exposure is reallocated pursuant to clause (i) above, then the 's 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 Obligations are neither reallocated nor cash collateralized pursuant to clause (i) Section 2.14.3.1 or (ii) 2.13.3.2 above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Bank hereunder, all Letter of Credit participation fees that otherwise would have been Fees payable to such Defaulting Bank under Section 2.5(c)(i) 2.9.2 with respect to such Defaulting Bank’s unreallocated L/C Exposure 's Letter of Credit Obligations shall be payable to the Issuing Banks, ratably based on the portion of Bank (and not to such L/C Exposure attributable to Letters of Credit issued by each Issuing Defaulting Bank, ) until and to the extent that such L/C Exposure is Letter of Credit Obligations are reallocated and/or cash collateralized pursuant to clause (i) or (ii) above;collateralized; and
(d) 2.14.4. so long as such Bank is a Defaulting Bank, no PNC shall not be required to fund any Swing Loans and the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the such Issuing Banks are Bank is satisfied that the related exposure and the Defaulting Bank’s 's then outstanding L/C Exposure, Letter of Credit Obligations will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower in accordance with Section 2.8(c)2.14.3, and participating interests in any newly made Swing 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) 2.14.3.1 (and such Defaulting Bank shall not participate therein). If (i) a Bankruptcy Event or a Bail-In Action with respect to a Parent parent company of any Bank shall occur following the date hereof and for so long as such event shall continue continue, or (ii) PNC or the 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 generally (such Bank referenced in clauses (i) credit, PNC shall not be required to fund any Swing Loan and (ii), a “Disregarded Bank”), the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless PNC or the Issuing Banks are satisfied that Bank, as the Disregarded case may be, shall have entered into arrangements with the Borrower or such Bank’s then outstanding L/C Exposure, will be 100% covered by satisfactory to PNC or the Commitments of Issuing Bank, as the non-Disregarded Banks andcase may be, to the extent defease any risk to it in respect of 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 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)hereunder. In the event that the Administrative Agent, the Borrower Borrower, PNC and the Issuing Banks each agrees Bank agree in writing that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures Administrative Agent will so notify the parties hereto, and the Ratable Share of the Swing Loans and Letter of Credit Obligations of the Banks shall be readjusted to reflect the inclusion of such Bank’s 's Commitment, and on such date such Bank shall purchase at par such of the Revolving Loans of the other Banks (other than Swing Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting BankRatable Share.
Appears in 1 contract
Sources: Revolving Credit Facility (Papa Johns International Inc)
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) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);2.06.
(b) the Commitment The Commitments and Outstanding Extensions of Credit Loans of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) 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 10.111.04); providedprovided that any waiver, that this clause amendment or modification (bx) shall not apply to increasing or extending the vote term of a the Commitment of such Defaulting Bank in the case of an amendment, waiver or other modification (y) requiring the consent of such Bank all Banks or each affected Bank which affects such Defaulting Bank differently than other 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 Loan DocumentsBanks shall, in each case without case, require the consent of such Defaulting Bank;
(c) if If any L/C Obligations exist Exposure exists at the time such Bank becomes a Defaulting Bank then;:
(i) all or any part of the L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, Percentages but only to the extent the sum of all non-Defaulting Banks’ Outstanding Revolving Extensions of Credit plus such Defaulting Bank’s L/C Exposure does not exceed the total of all non-Defaulting Banks’ Commitments;
(ii) if If the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, Company shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, Agent cash collateralize for the benefit of the applicable Issuing Banks Lenders only the BorrowerCompany’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 If the Borrower Company cash collateralizes any portion of such Defaulting Bank’s L/C Exposure pursuant to clause (ii) above, the Borrower Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c2.04(c)(i) 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 If the L/C Exposure of the non-Defaulting Bank is reallocated pursuant to clause (i) above, then the Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank the Banks pursuant to Section 2.5(c)(i2.06(a) with respect to such Defaulting Bank’s reallocated L/C Exposure and Section 2.04(c)(i) shall be payable to the non-Defaulting Banks adjusted in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocationPercentages; and
(v) if 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 Lender 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)(i2.04(c)(i) with respect to such Defaulting Bank’s unreallocated L/C Exposure shall be payable to the such Issuing Banks, ratably based on the portion of such L/C Exposure attributable to Letters of Credit issued by each Issuing Bank, Lender until and to the extent that such L/C Exposure is reallocated and/or cash collateralized pursuant to clause (i) or (ii) abovecollateralized;
(d) so long as such Bank is a Defaulting Bank, no Issuing Bank Lender shall be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are it is satisfied that the related exposure and the Defaulting Bank’s then outstanding L/C Exposure, Exposure will be 100% covered by the Commitments of the non-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower Company in accordance with Section 2.8(c2.12(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 2.8(c)(i2.12(c) (and such Defaulting Bank shall not participate therein). If .
(e) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 4.07(b) but excluding Section 5.07) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent and the Issuing Lenders hereunder, (ii) second, to the funding of any Loan or participation in any Letter of Credit 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 or participations in Letters of Credit under this Agreement, (iv) fourth, to the payment of any amounts then owing to the Banks or Issuing Lenders as a Bankruptcy Event result of any judgment of a court of competent jurisdiction obtained by any Bank or Issuing Lender against such Defaulting Bank as a Bail-In Action result of such Defaulting Bank’s breach of its obligations under this Agreement, (v) fifth, to the payment of any amounts then 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 (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided, with respect to this clause (vi), that if such payment is (x) a Parent prepayment of the principal amount of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) the Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations to extend credit generally (such Bank referenced in clauses (i) Loans and (ii)y) made at a time when the conditions set forth in Section 6.02 are satisfied, a “Disregarded Bank”), such payment shall be applied solely to prepay the Issuing Bank shall not be required to issue, amend or increase any Letter Loans of Credit, unless the Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments of the all non-Disregarded Defaulting Banks and, pro rata prior to being applied to the extent such 100% coverage is not achievedprepayment of any Loans, by cash collateral which will be provided by the Borrower in the manner consistent with Section 2.8(c)or reimbursement obligations owed to, and participating interests in 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)Defaulting Bank. In the event that the Administrative Agent, the Borrower Issuing Lenders and the Issuing Banks Company each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures Exposure of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment, Commitment and on such date such previously Defaulting Bank shall purchase at par such of the Revolving Loans of the other Banks (other than Money Market Loans) as the Administrative Agent shall determine may be necessary in order for such previously Defaulting Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 1 contract
Sources: Revolving Credit Agreement (Motorola Solutions, Inc.)
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document 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) Commitment Fees shall cease to accrue on the unfunded portion of neither the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) nor the Commitment and Outstanding Extensions of Credit Loans of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.19.05); providedprovided that any waiver, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks which affects such Defaulting Bank or each Bank differently than other affected thereby if Banks shall require the consent of such Bank is an affected Defaulting Bank; provided, furtherfurther that no waiver, that there shall not be any amendmentamendment or modification of the type described in clauses (a)(i), 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 of Section 9.05 may be made without the written consent of any Defaulting Bank affected thereby;
(b) the Company may, at its sole expense, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the assignment restrictions contained in Section 9.06, with the Company or transfer by the Borrower of any replacement Bank paying the processing and recording fee), all of its respective interests, rights and obligations under this Agreement and to an Assignee that shall assume such obligations (which Assignee may be another Bank, if a Bank accepts such assignment); provided that (i) the other Loan Documents, in each case without Company shall have received the prior written consent of the Administrative Agent to such Bankassignment (to the extent such consent would otherwise be required pursuant to Section 9.06), which consent shall not unreasonably be withheld, delayed or conditioned, and (ii) such Defaulting Bank shall have received payment of an amount equal to the outstanding 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 principal and accrued interest and fees) or the Company;
(c) if any L/C Obligations exist at facility fees shall cease to accrue on the time such Bank becomes a Defaulting Bank then;
(i) all or any part unused portion of the L/C Exposure Commitment of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, but only to the extent the sum of all non-Defaulting Banks’ 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, 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, 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) above2.08;
(d) so long as such notwithstanding any contrary provision in this Agreement, the Company may (i) prepay, without penalty or premium, the Loans made by a Defaulting Bank is and (ii) terminate the unused amount of the Commitment of a Defaulting Bank, no Issuing Bank shall in each case, (x) without pro rata prepayment of Loans of other Banks or pro rata termination of Commitments of other Banks and (y) upon not less than two Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof), it being understood that such prepayment and termination will not be required deemed to issue, amend be a waiver or increase release of any Letter of Credit, unless claim the Issuing Banks are satisfied that Company or the Administrative Agent may have against such Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered by ; and
(e) nothing in this Section shall affect any rights or remedies the Commitments of the non-Company may have against any 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 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 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 and on the date that the Administrative Agent, the Borrower Agent and the Issuing Banks Company each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights Commitment and remedies against, and with respect to, such Bank shall no longer be a Defaulting Bank under this Bank. Each party hereto agrees that (a) an assignment required pursuant to Section 2.8 are in addition to2.16(b) may be effected pursuant to an Assignment and Assumption executed by the Company, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each the assignee and (b) the Bank required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Bank, each Issuing Bank provided, further that any such documents shall be without recourse to or warranty by the Borrower may at any time have against, or with respect to, such Defaulting Bankparties thereto.
Appears in 1 contract
Sources: Five Year Credit Agreement (Rockwell Automation, Inc)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement or any other Loan Document 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 any Issuing Bank or the Lead Borrower), the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(ai) Commitment Fees no commitment fee shall cease to accrue on the unfunded portion unused amount of the any Commitment of such any Defaulting Bank pursuant to Section 3.2(a2.8(a);
(bii) the Commitment and Outstanding Extensions Revolving Exposure of Credit of such each Defaulting Bank shall not be included disregarded in determining whether all the requisite Banks (or each Bank) or the Majority Banks shall have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendmentwaiver, waiver amendment or other modification pursuant to Section 10.19.5); providedprovided that any waiver, that amendment, or other modification that, disregarding the effect of this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendmentii), waiver or other modification requiring requires the consent of such Bank or each Bank directly affected thereby if such pursuant to clause (a), (b) or (c) of Section 9.5 shall continue to require the consent of each Defaulting Bank is an directly affected Bankthereby in accordance with the terms hereof; provided, further, that there shall not be any amendmentwaiver, amendment or other modification of this Section 2.20(a)(ii) or waiver clause (ia), (b) or (c) of Section 9.5 at any provision of Section 4.2 or Section 10.1 in time that 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 Loan Documents, in each case without Bank is a Defaulting Bank shall require the consent of such BankDefaulting Bank if such Defaulting Bank would be directly adversely affected thereby;
(ciii) if any L/C Obligations exist LC Exposure exists at the time such any Bank becomes a Defaulting Bank (each Letter of Credit to which such LC Exposure is attributable being referred to as a “Reallocated Letter of Credit”), then:
(A) subject to clause (B) below, the participation of each Non-Defaulting Bank in each Reallocated Letter of Credit shall be adjusted to be determined under Section 2.18(d) on the basis of such Bank’s Adjusted Applicable Percentage (and all references in Section 2.18 to “Applicable Percentage” shall be deemed to be references to “Adjusted Applicable Percentage”);
(iB) all or notwithstanding the foregoing:
(1) if any part of the L/C Exposure of such Bank that becomes a Defaulting Bank shall be reallocated an Issuing Bank or an Affiliate thereof, no adjustment shall be made pursuant to clause (effective A) above with respect to participations in any Letter of Credit issued by such Issuing Bank;
(2) if all the Defaulting Banks’ Applicable Percentage of the LC Exposure attributable to the Reallocated Letters of Credit (the “Defaulting Bank LC Exposure”) exceeds the unused portion of the Commitments of the Non-Defaulting Banks as of the date time the adjustments are to be made pursuant to clause (A) above (such Bank becomes a Defaulting Bank) among unused portion being referred to as the non“Maximum Incremental Participation Amount”), then the incremental amount of participations acquired by the Non-Defaulting Banks in accordance with their respective Revolving Percentages, but under clause (A) above (the “Incremental LC Participations”) shall not exceed at any time the Maximum Incremental Participation Amount;
(3) adjustments under Section 2.20(a)(iii)(A) and (B) above shall only be made to the extent that, after giving effect to such adjustments, the sum Revolving Exposure of all nonany Non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s L/C Exposure does Bank shall not exceed its Commitment; and
(4) no adjustment shall be made under Section 2.20(a)(iii)(A) or (B) above if, at the total time such adjustment is made, an Event of all non-Defaulting Banks’ CommitmentsDefault has occurred and is continuing;
(iiC) if the reallocation described in clause (i) above cannotDefaulting Bank LC Exposure exceeds the Maximum Incremental Participation Amount, then the applicable Borrower or can only partially, be effected, the applicable Additional Borrower shall, within two five Domestic Business Days following the Borrower’s after receipt of written notice by to that effect from the Administrative Agent, cash collateralize for the benefit Reallocated Letters of Credit (in a manner and under documentation reasonably satisfactory to the Administrative Agent) in an aggregate amount equal to the excess, if any, of the Defaulting Bank LC Exposure over the Maximum Incremental Participation Amount or, if agreed to by the applicable Issuing Banks only Bank, enter into other arrangements with respect to the Reallocated Letters of Credit on terms mutually agreed between such Issuing Bank and the applicable Borrower or applicable Additional Borrower’s obligations corresponding to such Defaulting Bank’s L/C Exposure ;
(after giving effect to D) if any partial reallocation Reallocated Letter of Credit shall have been cash collateralized by the applicable Borrower or applicable Additional Borrower 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 (iiC) above, then (x) the applicable Borrower or applicable Additional Borrower shall not be required to pay any letter of credit participation fees to such Defaulting Bank pursuant to Section 2.5(c2.8(b) with respect to the portion of such Reallocated Letter of Credit that is so cash collateralized and (y) to the extent any letter of credit participation fees are not required to be paid by reason of clause (x) above, the reduction in the amount of such fees shall be allocated to the Defaulting Bank’s L/C Exposure during the period such Defaulting Bank’s L/C Exposure is cash collateralizedBanks;
(ivE) if all or any portion of such Defaulting Bank’s L/C Exposure is reallocated an adjustment shall have been made pursuant to clause (iA) aboveabove to the participations of the Non-Defaulting Banks in Reallocated Letters of Credit, then the Letter letter of Credit credit participation fees that would otherwise would have been payable to such the Banks that are Defaulting Bank Banks pursuant to Section 2.5(c)(i2.8(b) with respect to the portion of such Defaulting Bank’s reallocated L/C Exposure Reallocated Letters of Credit equal to the Incremental LC Participations therein shall instead accrue for the accounts of, and be payable to to, the nonBanks that are Non-Defaulting Banks in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocation; andtheir Adjusted Applicable Percentages;
(vF) if all or the Defaulting Bank LC Exposure at any time shall exceed the sum of the Incremental LC Participations at such time and the portion of such Defaulting Bank’s L/C Exposure is neither reallocated nor the Reallocated Letters of Credit cash collateralized at such time pursuant to clause (i) or (iiC) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Non-Defaulting Bank hereunder, all letter of credit participation fees payable to the Banks that are Defaulting Banks under Section 2.8(b) with respect to the portion of the Defaulting Bank LC Exposure equal to such excess shall instead accrue for the account of, and be payable to, the applicable Issuing Bank that shall have issued the Reallocated Letters of Credit; and
(G) the Revolving Exposure of each Non-Defaulting Bank shall be determined after giving effect to the Incremental LC Participations acquired by such Bank under the foregoing clauses of this clause (iii);
(iv) in the event any Letter of Credit shall be issued or amended to increase the amount thereof, (A) the participations of the Non-Defaulting Banks therein shall be determined in the manner set forth in clause (iii)(A) above, as if such Letter of Credit shall have been a Reallocated Letter of Credit, and (B) letter of credit participation fees that would otherwise would have been payable to the Banks that are Defaulting Banks pursuant to Section 2.8(b) in respect of any such Defaulting Bank under Section 2.5(c)(i) with respect to such Defaulting Bank’s unreallocated L/C Exposure Letter of Credit 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 subject to clause (i) or (iiiii)(E) above;
(d) so long as such Bank is a Defaulting Bank; provided, however, that, notwithstanding anything to the contrary set forth herein, no Issuing Bank shall be required to issue, amend extend, renew or increase the amount of any Letter of Credit, Credit unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Exposure, Banks’ Applicable Percentage of the LC Exposure attributable to such Letter of Credit will be 100% entirely covered by the Commitments participations therein of the nonNon-Defaulting Banks and/or cash collateral or other arrangements satisfactory to such Issuing Bank provided by the applicable Borrower or applicable Additional Borrower (in a manner and under documentation satisfactory to such Issuing Bank); and
(v) any amount payable to or for the account of any Defaulting Bank in its capacity as a Bank hereunder (whether on account of principal, interest, fees or otherwise, and including any amounts payable to such Defaulting Bank pursuant to Sections 2.10 and 2.11, but excluding any amounts payable to such Defaulting Bank pursuant to Sections 2.13, 2.15, 2.17, 8.3 and 9.3) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, (A) be applied, at such time or times as may be determined by the Administrative Agent, (1) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, (2) second, to the payment of any amounts owing by such Defaulting Bank to each Issuing Bank in respect of such Defaulting Bank’s participations in Letters of Credit (and to the extent any such 100% coverage is not achievedamounts shall have been paid by Non-Defaulting Banks as a result of adjustments pursuant to clause (iii) above, by to reimburse such Non-Defaulting Banks for such amounts), (3) third, to cash collateralize participation obligations of such Defaulting Bank in respect of outstanding Letters of Credit (with the concurrent release of an equivalent amount any cash collateral which will be or other collateral security, if any, provided by the applicable Borrower pursuant to this Section) and (4) fourth, to the funding of such Defaulting Bank’s Applicable Percentage of any Borrowing in accordance with Section 2.8(c), and participating interests in any newly issued or increased Letter respect of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.8(c)(i) (and which such Defaulting Bank shall have failed to fund such share as required hereunder, (B) to the extent not participate therein). 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 applied as aforesaid, be held, if so long as such event shall continue or (ii) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, will be 100% covered determined by the Commitments Administrative Agent, as cash collateral for funding obligations of such Defaulting Bank in respect of future Loans hereunder, (C) to the non-Disregarded Banks andextent not applied or held as aforesaid, be applied, pro rata, to the payment of any amounts owing to any Borrower or the Non-Defaulting Banks as a result of any judgment of a court of competent jurisdiction obtained by any Borrower or any Non-Defaulting Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations hereunder and (D) to the extent not applied or held as aforesaid, be distributed to such 100% coverage is not achieved, Defaulting Bank or as otherwise directed 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 issued or increased Letter a court of Credit shall be allocated among the non-Disregarded Banks in a manner consistent with Section 2.8(ccompetent jurisdiction.
(b) (and such Disregarded Bank shall not participate therein). In the event that the Administrative Agent, the Borrower Issuing Banks and the Issuing Banks each agrees Borrowers shall have agreed that a Bank that is a Defaulting Bank has adequately remedied all matters that caused such Bank to be become a Defaulting Bank, then (i) such Bank shall cease to be a Defaulting Bank for all purposes hereof, (ii) the L/C Exposures obligations of the Banks to purchase participations in Letters of Credit under Section 2.18(d) shall be readjusted to reflect be determined on the inclusion basis of such Bank’s Commitment, Banks’ Applicable Percentages and on such date (iii) such Bank shall purchase at par such of the Revolving Loans of the other Banks as the Administrative Agent shall determine may to be necessary in order for such Bank the Loans to hold such Revolving Loans be held by the Banks in accordance with their Applicable Percentages.
(c) No Commitment of any Bank shall be increased or otherwise affected and, except as otherwise expressly provided in this Section, performance by any Borrower and any Additional Borrower of its Revolving PercentageObligations hereunder and under the other Loan Documents shall not be excused or otherwise modified as a result of the operation of this Section. The rights and remedies against, and with respect to, against a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all to other rights and remedies that any Borrower, any Additional Borrower, the Administrative Agent and each BankAgent, the Issuing Banks or any Non-Defaulting Bank may have against such Defaulting Bank (and, for the avoidance of doubt, each Issuing Non-Defaulting Bank or shall have a claim against any Defaulting Bank for any losses it may suffer as a result of the Borrower may at any time have against, or with respect to, such Defaulting Bankoperation of this Section).
Appears in 1 contract
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) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);2.06.
(b) the Commitment The Commitments and Outstanding Extensions of Credit Loans of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) 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 10.111.04); providedprovided that any waiver, that this clause amendment or modification (bx) shall not apply increasing or extending the term of the Commitment of, reducing amounts owed to or extending the vote final maturity of a the loans of such Defaulting Bank in the case of an amendment, waiver or other modification (y) requiring the consent of such Bank all Banks or each affected Bank which affects such Defaulting Bank differently than other 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 Loan DocumentsBanks shall, in each case without case, require the consent of such Defaulting Bank;
(c) if If any L/C Obligations exist Exposure exists at the time such Bank becomes a Defaulting Bank then;:
(i) all or any part of the L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, Percentages but only to the extent that (i) the sum of all non-Defaulting Banks’ Outstanding Revolving Extensions of Credit plus such Defaulting Bank’s L/C Exposure does not exceed the total of all non-Defaulting Banks’ CommitmentsCommitments and (ii) with respect to each such non-Defaulting Bank, the sum of such non-Defaulting Bank’s Revolving Extensions of Credit plus its allocated percentage of such Defaulting Bank’s L/C Exposure does not exceed such non-Defaulting Bank’s Commitment;
(ii) if If the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, Company shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, Agent cash collateralize for the benefit of the applicable Issuing Banks Lenders only the BorrowerCompany’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 If the Borrower Company cash collateralizes any portion of such Defaulting Bank’s L/C Exposure pursuant to clause (ii) above, the Borrower Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c2.04(c)(i) 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 If the L/C Exposure of the non-Defaulting Bank is reallocated pursuant to clause (i) above, then the Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank the Banks pursuant to Section 2.5(c)(i2.06(a) with respect to such Defaulting Bank’s reallocated L/C Exposure and Section 2.04(c)(i) shall be payable to the non-Defaulting Banks adjusted in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocationPercentages; and
(v) if 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 Lender 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)(i2.04(c)(i) with respect to such Defaulting Bank’s unreallocated L/C Exposure shall be payable to the such Issuing Banks, ratably based on the portion of such L/C Exposure attributable to Letters of Credit issued by each Issuing Bank, Lender until and to the extent that such L/C Exposure is reallocated and/or cash collateralized pursuant to clause (i) or (ii) abovecollateralized;
(d) so long as such Bank is a Defaulting Bank, no Issuing Bank Lender shall be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are it is satisfied that the related exposure and the Defaulting Bank’s then outstanding L/C Exposure, Exposure will be 100% covered by the Commitments of the non-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower Company in accordance with Section 2.8(c2.12(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 2.8(c)(i2.12(c) (and such Defaulting Bank shall not participate therein). If .
(e) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 4.07(b) but excluding Section 5.07) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent and the Issuing Lenders hereunder, (ii) second, to the funding of any Loan or participation in any Letter of Credit 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 or participations in Letters of Credit under this Agreement, (iv) fourth, to the payment of any amounts then owing to the Banks or Issuing Lenders as a Bankruptcy Event result of any judgment of a court of competent jurisdiction obtained by any Bank or Issuing Lender against such Defaulting Bank as a Bail-In Action result of such Defaulting Bank’s breach of its obligations under this Agreement, (v) fifth, to the payment of any amounts then 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 (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided, with respect to this clause (vi), that if such payment is (x) a Parent prepayment of the principal amount of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) the Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations to extend credit generally (such Bank referenced in clauses (i) Loans and (ii)y) made at a time when the conditions set forth in Section 6.02 are satisfied, a “Disregarded Bank”), such payment shall be applied solely to prepay the Issuing Bank shall not be required to issue, amend or increase any Letter Loans of Credit, unless the Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments of the all non-Disregarded Defaulting Banks and, pro rata prior to being applied to the extent such 100% coverage is not achievedprepayment of any Loans, by cash collateral which will be provided by the Borrower in the manner consistent with Section 2.8(c)or reimbursement obligations owed to, and participating interests in 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)Defaulting Bank. In the event that the Administrative Agent, the Borrower Issuing Lenders and the Issuing Banks Company each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures Exposure of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment, Commitment and on such date such previously Defaulting Bank shall purchase at par such of the Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such previously Defaulting Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 1 contract
Sources: Revolving Credit Agreement (Motorola Solutions, Inc.)
Defaulting Banks. Notwithstanding (a) If any provision Letters of this Agreement or any other Loan Document to Credit are outstanding at the contrary, if any time a Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions of Credit of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) 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 10.1); 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 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 Loan DocumentsCommitments have not been terminated in accordance with Section 8.01, in each case without the consent of such Bank;
(c) if any L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;:
(i) so long as no Default has occurred and is continuing, all or any part of the L/C Exposure participations in outstanding Letters of such Defaulting Bank Credit shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the nonBanks that are Non-Defaulting Banks in accordance with their respective Revolving Percentages, Applicable Percentages (disregarding any Defaulting Bank's Commitment) but only to the extent that the sum of (A) the aggregate principal amount of all nonAdvances made by the Non-Defaulting Banks (in their capacity as Banks) and outstanding at such time, plus (B) the Non-Defaulting Banks’ Outstanding Extensions of Credit ' aggregate LC Exposures, plus (C) such Defaulting Bank’s L/C Exposure 's LC Exposure, does not exceed the total of all nonNon-Defaulting Banks’ ' Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, Company shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agentany Issuing Bank, cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Bank’s L/C '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 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 (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 participation or a portion thereof is collateralized, no fees that otherwise would have been 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 such Defaulting Bank the Banks pursuant to Section 2.5(c)(i4.01(b)(i) with respect to such Defaulting Bank’s reallocated L/C Exposure shall be payable to the non-Defaulting Banks adjusted in accordance with such nonthe Non-Defaulting Banks’ Revolving ' Applicable Percentages after giving effect to such reallocationof Letters of Credit as reallocated; andor
(viv) if all or to the extent any portion of such Defaulting Bank’s L/C Exposure 's Applicable Percentage of Letters of Credit is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.07(a), then, without prejudice to any rights or remedies of any Issuing Bank or any other Bank hereunder, all Letter letter of Credit participation credit fees that otherwise would have been payable to such Defaulting Bank under Section 2.5(c)(i4.01(b)(i) with respect to such Defaulting Bank’s unreallocated L/C Exposure 's Applicable Percentage of Letters of Credit that has not been reallocated or collateralized shall be payable to the applicable Issuing Banks, ratably based on the portion Bank until such Defaulting Bank's Applicable Percentage 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 has been fully cash collateralized pursuant to clause (i) or (ii) above;and/or reallocated.
(db) so So long as such any Bank is a Defaulting Bank, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Exposure, related exposure will be 100% covered by the Commitments of the nonNon-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower Company in accordance with Section 2.8(c2.07(a) or provided in accordance with Section 2.07(g), and participating interests in any such newly issued issued, amended or increased Letter of Credit shall be allocated among nonNon-Defaulting Banks in a manner consistent with Section 2.8(c)(i2.07(a)(i) (and such Defaulting Bank Banks shall not participate therein). If .
(ic) a Bankruptcy Event or a Bail-In Action with respect to a Parent No Commitment of any Bank shall occur following be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.07, performance by the date hereof and for so long as such event shall continue or (ii) the Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling Company of its obligations to extend credit generally (such Bank referenced in clauses (i) and (ii), a “Disregarded Bank”), the Issuing Bank shall not be required to issue, amend excused or increase any Letter of Credit, unless the Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments otherwise modified as a result of the non-Disregarded Banks andoperation of this Section 2.07. The rights and remedies against a Defaulting Bank under this Section 2.07 are in addition to any other rights and remedies which the Company, 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 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 Administrative Agent, any Bank or any Issuing Bank may have against such Defaulting Bank.
(d) [Reserved].
(e) [Reserved].
(f) If the Borrower Company, the Administrative Agent and the each Issuing Banks each agrees Bank agree in writing in their reasonable determination that a Defaulting Bank has adequately remedied all matters that caused such Bank should no longer be deemed to be a Defaulting Bank, then the L/C Exposures Administrative Agent will so notify the parties hereto, whereupon as of the Banks shall be readjusted effective date specified in such notice and subject to reflect any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Bank will, to the inclusion extent applicable, purchase, at par, that portion of such Bank’s Commitment, and on such date such Bank shall purchase at par such of the Revolving Loans outstanding Advances of the other Banks or take such other actions as the Administrative Agent shall may determine may to be necessary to cause the Advances and funded and unfunded participations in order for such Bank Letters of Credit to hold such Revolving Loans be held on a pro rata basis by the Banks in accordance with its Revolving Percentage. The rights and remedies againsttheir Applicable Percentages (without giving effect to Section 2.07(a)), and whereupon such Bank will cease to be a Defaulting Bank; provided that no adjustments will be made retroactively with respect toto fees accrued or payments made by or on behalf of the Company while that Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to 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 Section 2.8 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 in addition tothen outstanding; fifth, and cumulative and not in limitation of, all other rights and remedies that if so determined by the Administrative Agent and each Bankthe Company, each Issuing to be held in a cash collateral account and released in order to satisfy obligations of such Defaulting Bank or to fund Advances under this Agreement; sixth, if so determined by the Borrower may at any time have againstAdministrative Agent and the Company, or with respect to, 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 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) Commitment Facility Fees shall cease to accrue on the unfunded portion unused amount of the Revolving Credit Commitment of such Defaulting Bank pursuant to Section 3.2(a2.07(a);
(b) the Revolving Credit Commitment and Outstanding Extensions of Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether all the Required Banks (or each Bank) or the Majority 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 10.110.01); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an any amendment, waiver or other modification requiring the consent of such Bank all Banks or each Bank all Banks affected thereby if such Bank is an affected Bank; providedshall, furtherexcept as otherwise provided in Section 10.01, 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 Loan Documents, in each case without require the consent of such BankDefaulting Bank in accordance with the terms hereof;
(c) if any L/C Obligations exist LC Exposure exists at the time such Bank becomes a Defaulting Bank then;:
(i) all or any part of the L/C LC Exposure of such Defaulting Bank (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Bank shall have funded its participation as contemplated by Sections 2.03(d) and 2.03(e)) shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the nonNon-Defaulting Banks in accordance with their respective Revolving Percentages, Proportional Shares but only to the extent that (x) such reallocation does not cause the aggregate Revolving Credit Exposure of any such Non-Defaulting Bank to exceed such Non-Defaulting Bank’s Revolving Credit Commitment and (y) the sum of all nonNon-Defaulting Banks’ Outstanding Extensions of Revolving Credit Exposures plus such Defaulting Bank’s L/C LC Exposure (excluding the portion thereof referred to above) does not exceed the total sum of all nonNon-Defaulting Banks’ Revolving Credit Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, Company shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to portion of such Defaulting Bank’s L/C LC Exposure (after giving effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) above) that has not been reallocated, in accordance with the procedures set forth in Section 8.2 2.03(j), for so long as such L/C LC Exposure is outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Bank’s L/C LC Exposure pursuant to clause (ii) above, the Borrower Company shall not be required to pay any participation fees to such Defaulting Bank pursuant to Section 2.5(c2.07(b) with respect to such Defaulting Bank’s L/C Exposure during the period portion of such Defaulting Bank’s L/C LC Exposure for so long as such Defaulting Bank’s LC Exposure is cash collateralized;
(iv) if all or any portion of the LC Exposure of such Defaulting Bank’s L/C Exposure Bank is reallocated pursuant to clause (i) above, then the Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank the Banks pursuant to Section 2.5(c)(i2.07(b) with respect to such Defaulting Bank’s reallocated L/C Exposure shall be payable adjusted to the non-Defaulting Banks in accordance with such non-Defaulting Banks’ Revolving Percentages after giving give effect to such reallocation; and
(v) if all or any portion of such Defaulting Bank’s L/C 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, 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)(i2.07(b) with respect to such Defaulting Bank’s unreallocated L/C LC Exposure shall be payable to the Issuing Banks, Banks (and allocated among them ratably based on the portion amount of such L/C Defaulting Bank’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank, ) until and to the extent that such L/C LC Exposure is reallocated and/or cash collateralized pursuant to clause (i) or (ii) above;collateralized; and
(dvi) so long as such Bank is a Defaulting Bank, no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, Credit unless the Issuing Banks are it is satisfied that the related exposure and the Defaulting Bank’s then outstanding L/C Exposure, LC Exposure will be 100% fully covered by the Revolving Credit Commitments of the nonNon-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower Company in accordance with Section 2.8(c2.03(j), and participating interests in any newly issued such issued, amended, renewed or increased extended Letter of Credit shall will be allocated among nonthe Non-Defaulting Banks in a manner consistent with Section 2.8(c)(i2.14(c)(i) (and such Defaulting Bank shall not participate therein). 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 Administrative Agent, the Borrower Company and the each Issuing Banks Bank each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C LC Exposures of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment, Revolving Credit Commitment and on such date such Bank shall purchase at par such of the Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving PercentageProportional Share. The rights and remedies againstSubject to Section 10.19, and with respect to, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies arising from that the Administrative Agent and each Bank having become a Defaulting Bank, each Issuing including any claim of a Non-Defaulting Bank or the Borrower may at any time have against, or with respect to, 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 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) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions of Credit of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) 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 10.1); 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 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 Loan Documents, in each case without the consent of such Bank;
(c) if any Swingline Exposure or L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;
(i) all or any part of the Swingline Exposure and L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, but only to the extent the sum of 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 or a Bail-In Action with respect to a Parent of any Bank (such Bank, a “Disregarded Bank”) shall occur following the date hereof and for so long as such event shall continue or (ii) continue, the Issuing Bank has a good faith belief that Swingline Lender shall not be required to fund any Bank has defaulted in fulfilling its obligations to extend credit generally (such Bank referenced in clauses (i) Swingline Loan and (ii), a “Disregarded Bank”), 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 Administrative Agent, the Borrower Borrower, the Swingline Lender and the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the Swingline Exposures and L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank Bank, the Swingline Lender or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 1 contract
Sources: Credit Agreement (Centerpoint Energy Resources Corp)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, if any Bank becomes a one or more Revolving Banks become Defaulting BankBanks, then the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(ai) Commitment Fees no commitment fee shall cease to accrue on the unfunded portion unused amount of the any Revolving Commitment of such any Defaulting Bank pursuant to Section 3.2(a2.8(a);
(bii) the Commitment Revolving Commitments and Outstanding Extensions Revolving Exposures of Credit of such each Defaulting Bank shall not be included disregarded in determining whether all the Required Revolving Banks, Required Banks (or each Bank) or the Majority any other requisite Banks shall have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendmentwaiver, waiver amendment or other modification pursuant to Section 10.19.5); providedprovided that any waiver, that amendment, or other modification that, disregarding the effect of this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendmentii), waiver or other modification requiring requires the consent of such Bank or each Bank directly affected thereby if such pursuant to clause (1)(a), (1)(b), (1)(c) or (1)(d) of Section 9.5 shall continue to require the consent of each Defaulting Bank is an directly affected Bankthereby in accordance with the terms hereof; provided, further, that there shall not be any amendmentwaiver, amendment or other modification of this Section 2.20(a)(ii) or waiver clause (i1)(a), (1)(b), (1)(c) or (1)(d) of Section 9.5 at any provision of Section 4.2 or Section 10.1 in time that 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 Loan Documents, in each case without Bank is a Defaulting Bank shall require the consent of such BankDefaulting Bank if such Defaulting Bank would be directly adversely affected thereby;
(c1) in the case of a Defaulting Bank that is a Dollar Revolving Bank, if any L/C Obligations exist Dollar LC Exposure or Swingline Exposure exists at the time such Dollar Revolving Bank becomes a Defaulting Bank or (2) in the case of a Defaulting Bank that is a Multi-Currency Revolving Bank, if any Multi-Currency LC Exposure exists at the time such Multi-Currency Bank becomes a Defaulting Bank (each Swingline Loan to which such Swingline Exposure is attributable being referred to as a “Reallocated Swingline Loan” and each Letter of Credit to which such LC Exposure is attributable being referred to as a “Reallocated Letter of Credit”), then:
(A) subject to clause (B) below, the participation of each Non-Defaulting Bank of such Class in each Reallocated Swingline Loan (if applicable) or Reallocated Letter of Credit of such Class shall be adjusted to be determined under Section 2.18(d) or 2.23 on the basis of such Revolving Bank’s Adjusted Dollar Applicable Percentage or Adjusted Multi-Currency Applicable Percentage, as the case may be (and all references in Section 2.18 or 2.23 to “Dollar Applicable Percentage” or “Multi-Currency Applicable Percentage” shall be deemed to be references to “Adjusted Dollar Applicable Percentage” or “Adjusted Multi-Currency Applicable Percentage”, as the case may be);
(iB) all or notwithstanding the foregoing:
(1) if any part of the L/C Exposure of such Revolving Bank that becomes a Defaulting Bank shall be reallocated the Swingline Bank or an Issuing Bank or an Affiliate thereof, no adjustment shall be made pursuant to clause (effective A) above with respect to participations in any Swingline Loan made by the Swingline Bank or any Letter of Credit issued by such Issuing Bank, as the case may be;
(2) if all the Defaulting Banks’ Applicable Percentage of the LC Exposure of any Class attributable to the Reallocated Letters of Credit of such Class (the “Defaulting Bank LC Exposure”) and, in the case of Dollar Revolving Banks, the Swingline Exposure attributable to the Reallocated Swingline Loans (the “Defaulting Bank Swingline Exposure”) collectively exceed the unused portion of the Revolving Commitments of the Non-Defaulting Banks of such Class as of the date time the adjustments are to be made pursuant to clause (A) above (any such Bank becomes a Defaulting Bank) among unused portion being referred to as the non“Maximum Incremental Participation Amount”), then the incremental amount of participations in Letters of Credit of such Class and, in the case of Dollar Revolving Banks, Swingline Loans acquired by the Non-Defaulting Banks in accordance under clause (A) above (the “Incremental Participations”) shall not exceed at any time the Maximum Incremental Participation Amount with their respective Revolving Percentages, but respect to such Class;
(3) adjustments under Section 2.20(a)(iii)(A) and (B) above shall only be made to the extent that, after giving effect to such adjustments, the sum Revolving Exposure of all nonany Non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s L/C Exposure does Bank with respect to any Class shall not exceed its Revolving Commitment with respect to such Class; and
(4) no adjustment shall be made under Section 2.20(a)(iii)(A) or (B) above if, at the total time such adjustment is made, an Event of all non-Defaulting Banks’ CommitmentsDefault has occurred and is continuing;
(iiC) if the reallocation described Defaulting Bank LC Exposure with respect to any Class and Defaulting Bank Swingline Exposure (in clause (ithe case of Dollar Revolving Banks) above cannotcollectively exceed the Maximum Incremental Participation Amount with respect to such Class, then the applicable Borrower or can only partially, be effected, the applicable Additional Borrower shall, within two five Domestic Business Days following the Borrower’s after receipt of written notice by to that effect from the Administrative Agent, cash collateralize for the benefit Reallocated Letters of Credit of such Class and, in the case of Dollar Revolving Banks, prepay the Reallocated Swingline Loans (in a manner and under documentation reasonably satisfactory to the Administrative Agent) in an aggregate amount equal to the excess, if any, of the Defaulting Bank LC Exposure of such Class and, in the case of Dollar Revolving Banks, Defaulting Bank Swingline Exposure over the Maximum Incremental Participation Amount of such Class or, if agreed to by the applicable Issuing Banks only Bank and/or Swingline Bank, enter into other arrangements with respect to the Reallocated Letters of Credit of such Class or Reallocated Swingline Loans on terms mutually agreed between such Issuing Bank or the Swingline Bank, on the one hand, and the applicable Borrower or applicable Additional Borrower’s obligations corresponding to such Defaulting Bank’s L/C Exposure , on the other hand;
(after giving effect to D) if any partial reallocation Reallocated Letter of Credit shall have been cash collateralized by the applicable Borrower or applicable Additional Borrower 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 (iiC) above, then (x) the applicable Borrower or applicable Additional Borrower shall not be required to pay any letter of credit participation fees to such Defaulting Bank pursuant to Section 2.5(c2.8(b) with respect to the portion of such Reallocated Letter of Credit that is so cash collateralized and (y) to the extent any letter of credit participation fees are not required to be paid by reason of clause (x) above, the reduction in the amount of such fees shall be allocated to the Defaulting Bank’s L/C Exposure during the period such Defaulting Bank’s L/C Exposure is cash collateralizedBanks;
(ivE) if all or any portion of such Defaulting Bank’s L/C Exposure is reallocated an adjustment shall have been made pursuant to clause (iA) aboveabove to the participations of the Non-Defaulting Banks in Reallocated Letters of Credit of any Class, then the Letter letter of Credit credit participation fees that would otherwise would have been payable to such the Revolving Banks that are Defaulting Bank Banks pursuant to Section 2.5(c)(i2.8(b) with respect to the portion of such Defaulting Bank’s reallocated L/C Exposure Reallocated Letters of Credit of such Class equal to the Incremental Participations therein shall instead accrue for the accounts of, and be payable to to, the nonRevolving Banks of such Class that are Non-Defaulting Banks in accordance with such nontheir Adjusted Dollar Applicable Percentages or Adjusted Multi-Defaulting Banks’ Revolving Percentages after giving effect to such reallocation; andCurrency Applicable Percentages, as the case may be;
(vF) if all or the Defaulting Bank LC Exposure with respect to any Class at any time shall exceed the sum of the Incremental Participations in respect of Letters of Credit of such Class at such time and the portion of the Reallocated Letters of Credit of such Defaulting Bank’s L/C Exposure is neither reallocated nor Class cash collateralized at such time pursuant to clause (i) or (iiC) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Non-Defaulting Bank hereunder, all letter of credit participation fees payable to the Revolving Banks of such Class that are Defaulting Banks under Section 2.8(b) with respect to the portion of the Defaulting Bank LC Exposure of such Class equal to such excess shall instead accrue for the account of, and be payable to, the applicable Issuing Bank that shall have issued the Reallocated Letters of Credit of such Class; and
(G) the Revolving Exposure of each Non-Defaulting Bank with respect to any Class shall be determined after giving effect to the Incremental Participations acquired by such Revolving Bank with respect to such Class under the foregoing clauses of this clause (iii);
(1) in the event any (x) Letter of Credit shall be issued or amended to increase the amount thereof or (y) in the case of Dollar Revolving Banks, Swingline Loan shall be made, (A) the participations of the Non-Defaulting Banks of such Class therein shall be determined in the manner set forth in clause (iii)(A) above, as if such Letter of Credit of such Class or Swingline Loan shall have been a Reallocated Letter of Credit of such Class or a Reallocated Swingline Loan, as the case may be, and (B) letter of credit participation fees that would otherwise would have been payable to the Revolving Banks of such Class that are Defaulting Bank under Banks pursuant to Section 2.5(c)(i2.8(b) with in respect to of any such Defaulting Bank’s unreallocated L/C Exposure Letter of Credit shall be payable subject to Section 2.20(a)(iii)(E) above; provided, however, that, notwithstanding anything 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 Bankcontrary set forth herein, no Issuing Bank of such Class or Swingline Bank shall be required to issue, amend extend, renew or increase the amount of any Letter of CreditCredit of such Class or make any Swingline Loan, as applicable, unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Banks’ Dollar Applicable Percentage or Multi-Currency Applicable Percentage, as applicable, of the LC Exposure with respect to such Class or Swingline Exposure, as applicable, attributable to such Letter of Credit or Swingline Loan, as applicable, will be 100% entirely covered by the Commitments participations therein of the nonNon-Defaulting Banks and/or cash collateral or other arrangements satisfactory to such Issuing Bank or Swingline Bank provided by the applicable Borrower or applicable Additional Borrower (in a manner and under documentation satisfactory to such Issuing Bank or Swingline Bank, as applicable); and
(2) any amount payable to or for the account of any Defaulting Bank in its capacity as a Bank hereunder (whether on account of principal, interest, fees or otherwise, and including any amounts payable to such Defaulting Bank pursuant to Sections 2.10 and 2.11, but excluding any amounts payable to such Defaulting Bank pursuant to Sections 2.13, 2.15, 2.17, 8.3 and 9.3) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, (A) be applied, at such time or times as may be determined by the Administrative Agent, (1) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, (2) second to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to each Issuing Bank and Swingline Bank in respect of such Defaulting Bank’s participations in Letters of Credit and Swingline Loans (and to the extent any such 100% coverage is not achievedamounts shall have been paid by Non-Defaulting Banks as a result of adjustments pursuant to clause (iii) above, by to reimburse such Non-Defaulting Banks for such amounts), (3) third, to cash collateralize participation obligations of such Defaulting Bank in respect of outstanding Letters of Credit (with the concurrent release of an equivalent amount any cash collateral which will be or other collateral security, if any, provided by the applicable Borrower pursuant to this Section) and prepay Swingline Loans on a pro rata basis and (4) fourth, to the funding of such Defaulting Bank’s Applicable Percentage of any Revolving Borrowing in accordance with Section 2.8(c), and participating interests in any newly issued or increased Letter respect of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.8(c)(i) (and which such Defaulting Bank shall have failed to fund such share as required hereunder, (B) to the extent not participate therein). 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 applied as aforesaid, be held, if so long as such event shall continue or (ii) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, will be 100% covered determined by the Commitments Administrative Agent, as cash collateral for funding obligations of such Defaulting Bank in respect of future Loans hereunder, (C) to the non-Disregarded Banks andextent not applied or held as aforesaid, be applied, pro rata, to the payment of any amounts owing to any Borrower or the Non-Defaulting Banks as a result of any judgment of a court of competent jurisdiction obtained by any Borrower or any Non-Defaulting Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations hereunder and (D) to the extent not applied or held as aforesaid, be distributed to such 100% coverage is not achieved, Defaulting Bank or as otherwise directed 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 issued or increased Letter a court of Credit shall be allocated among the non-Disregarded Banks in a manner consistent with Section 2.8(ccompetent jurisdiction.
(b) (and such Disregarded Bank shall not participate therein). In the event that the Administrative Agent, the Borrower Issuing Banks of such Class, the Swingline Bank (solely in the case of Defaulting Banks that are Dollar Revolving Banks) and the Issuing Banks each agrees Borrowers shall have agreed that a Revolving Bank that is a Defaulting Bank has adequately remedied all matters that caused such Revolving Bank to be become a Defaulting Bank, then (i) such Revolving Bank shall cease to be a Defaulting Bank for all purposes hereof, (ii) the L/C Exposures obligations of the Revolving Banks to purchase participations in Letters of Credit under Section 2.18(d) and Swingline Loans under Section 2.23 shall be readjusted to reflect be determined on the inclusion basis of such Bank’s CommitmentRevolving Banks’ Dollar Applicable Percentages or Multi-Currency Applicable Percentages, as the case may be, and on (iii) such date such Revolving Bank shall purchase at par such of the Revolving Loans of the other Revolving Banks as the Administrative Agent shall determine may to be necessary in order for such Bank to hold such the Revolving Loans to be held by the Revolving Banks in accordance with their Dollar Applicable Percentages or Multi-Currency Applicable Percentages, as the case may be.
(c) No Revolving Commitment of any Revolving Bank shall be increased or otherwise affected and, except as otherwise expressly provided in this Section, performance by any Borrower or any Additional Borrower of its Revolving Percentageobligations hereunder and under the other Loan Documents shall not be excused or otherwise modified as a result of the operation of this Section. The rights and remedies against, and with respect to, against a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all to other rights and remedies that any Borrower, any Additional Borrower, the Administrative Agent and each BankAgent, the Issuing Banks, the Swingline Bank or any Non-Defaulting Bank may have against such Defaulting Bank (and, for the avoidance of doubt, each Issuing Non-Defaulting Bank or shall have a claim against any Defaulting Bank for any losses it may suffer as a result of the Borrower may at any time have against, or with respect to, such Defaulting Bankoperation of this Section).
Appears in 1 contract
Sources: Credit Agreement (Allegion PLC)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement or any other Loan Document 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 any Issuing Bank or the Lead Borrower), the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(ai) Commitment Fees no commitment fee shall cease to accrue on the unfunded portion unused amount of the any Commitment of such any Defaulting Bank pursuant to Section 3.2(a2.8(a);
(bii) the Commitment and Outstanding Extensions Revolving Exposure of Credit of such each Defaulting Bank shall not be included disregarded in determining whether all the requisite Banks (or each Bank) or the Majority Banks shall have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendmentwaiver, waiver amendment or other modification pursuant to Section 10.19.5); providedprovided that any waiver, that amendment, or other modification that, disregarding the effect of this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendmentii), waiver or other modification requiring requires the consent of such Bank or each Bank directly affected thereby if such pursuant to clause (a), (b) or (c) of Section 9.5 shall continue to require the consent of each Defaulting Bank is an directly affected Bankthereby in accordance with the terms hereof; provided, further, that there shall not be any amendmentwaiver, amendment or other modification of this Section 2.20(a)(ii) or waiver clause (ia), (b) or (c) of Section 9.5 at any provision of Section 4.2 or Section 10.1 in time that 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 Loan Documents, in each case without Bank is a Defaulting Bank shall require the consent of such BankDefaulting Bank if such Defaulting Bank would be directly adversely affected thereby;
(ciii) if any L/C Obligations exist LC Exposure exists at the time such any Bank becomes a Defaulting Bank (each Letter of Credit to which such LC Exposure is attributable being referred to as a “Reallocated Letter of Credit”), then:
(A) subject to clause (B) below, the participation of each Non-Defaulting Bank in each Reallocated Letter of Credit shall be adjusted to be determined under Section 2.18(d) on the basis of such Bank’s Adjusted Applicable Percentage (and all references in Section 2.18 to “Applicable Percentage” shall be deemed to be references to “Adjusted Applicable Percentage”);
(iB) all or notwithstanding the foregoing:
(1) if any part of the L/C Exposure of such Bank that becomes a Defaulting Bank shall be reallocated an Issuing Bank or an Affiliate thereof, no adjustment shall be made pursuant to clause (effective A) above with respect to participations in any Letter of Credit issued by such Issuing Bank;
(2) if all the Defaulting Banks’ Applicable Percentage of the LC Exposure attributable to the Reallocated Letters of Credit (the “Defaulting Bank LC Exposure”) exceeds the unused portion of the Commitments of the Non-Defaulting Banks as of the date time the adjustments are to be made pursuant to clause (A) above (such Bank becomes a Defaulting Bank) among unused portion being referred to as the non“Maximum Incremental Participation Amount”), then the incremental amount of participations acquired by the Non-Defaulting Banks in accordance with their respective Revolving Percentages, but under clause (A) above (the “Incremental LC Participations”) shall not exceed at any time the Maximum Incremental Participation Amount;
(3) adjustments under Section 2.20(a)(iii)(A) and (B) above shall only be made to the extent that, after giving effect to such adjustments, the sum Revolving Exposure of all nonany Non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s L/C Exposure does Bank shall not exceed its Commitment; and
(4) no adjustment shall be made under Section 2.20(a)(iii)(A) or (B) above if, at the total time such adjustment is made, an Event of all non-Defaulting Banks’ CommitmentsDefault has occurred and is continuing;
(iiC) if the reallocation described in clause (i) above cannotDefaulting Bank LC Exposure exceeds the Maximum Incremental Participation Amount, then the applicable Borrower or can only partially, be effected, the applicable Additional Borrower shall, within two five Domestic Business Days following the Borrower’s after receipt of written notice by to that effect from the Administrative Agent, cash collateralize for the benefit Reallocated Letters of Credit (in a manner and under documentation reasonably satisfactory to the Administrative Agent) in an aggregate amount equal to the excess, if any, of the Defaulting Bank LC Exposure over the Maximum Incremental Participation Amount or, if agreed to by the applicable Issuing Banks only Bank, enter into other arrangements with respect to the Reallocated Letters of Credit on terms mutually agreed between such Issuing Bank and the applicable Borrower or applicable Additional Borrower’s obligations corresponding to such Defaulting Bank’s L/C Exposure ;
(after giving effect to D) if any partial reallocation Reallocated Letter of Credit shall have been cash collateralized by the applicable Borrower or applicable Additional Borrower 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 (iiC) above, then (x) the applicable Borrower or applicable Additional Borrower shall not be required to pay any letter of credit participation fees to such Defaulting Bank pursuant to Section 2.5(c2.8(b) with respect to the portion of such Reallocated Letter of Credit that is so cash collateralized and (y) to the extent any letter of credit participation fees are not required to be paid by reason of clause (x) above, the reduction in the amount of such fees shall be allocated to the Defaulting Bank’s L/C Exposure during the period such Defaulting Bank’s L/C Exposure is cash collateralizedBanks;
(ivE) if all or any portion of such Defaulting Bank’s L/C Exposure is reallocated an adjustment shall have been made pursuant to clause (iA) aboveabove to the participations of the Non-Defaulting Banks in Reallocated Letters of Credit, then the Letter letter of Credit credit participation fees that would otherwise would have been payable to such the Banks that are Defaulting Bank Banks pursuant to Section 2.5(c)(i2.8(b) with respect to the portion of such Defaulting Bank’s reallocated L/C Exposure Reallocated Letters of Credit equal to the Incremental LC Participations therein shall instead accrue for the accounts of, and be payable to to, the nonBanks that are Non-Defaulting Banks in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocation; andtheir Adjusted Applicable Percentages;
(vF) if all or the Defaulting Bank LC Exposure at any time shall exceed the sum of the Incremental LC Participations at such time and the portion of such Defaulting Bank’s L/C Exposure is neither reallocated nor the Reallocated Letters of Credit cash collateralized at such time pursuant to clause (i) or (iiC) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Non-Defaulting Bank hereunder, all letter of credit participation fees payable to the Banks that are Defaulting Banks under Section 2.8(b) with respect to the portion of the Defaulting Bank LC Exposure equal to such excess shall instead accrue for the account of, and be payable to, the applicable Issuing Bank that shall have issued the Reallocated Letters of Credit; and
(G) the Revolving Exposure of each Non-Defaulting Bank shall be determined after giving effect to the Incremental LC Participations acquired by such Bank under the foregoing clauses of this clause (iii);
(iv) in the event any Letter of Credit shall be issued or amended to increase the amount thereof, (A) the participations of the Non-Defaulting Banks therein shall be determined in the manner set forth in clause (iii)(A) above, as if such Letter of Credit shall have been a Reallocated Letter of Credit, and (B) letter of credit participation fees that would otherwise would have been payable to the Banks that are Defaulting Banks pursuant to Section 2.8(b) in respect of any such Defaulting Bank under Section 2.5(c)(i) with respect to such Defaulting Bank’s unreallocated L/C Exposure Letter of Credit 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 subject to clause (i) or (iiiii)(E) above;
(d) so long as such Bank is a Defaulting Bank; provided, however, that, notwithstanding anything to the contrary set forth herein, no Issuing Bank shall be required to issue, amend extend, renew or increase the amount of any Letter of Credit, Credit unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Exposure, Banks’ Applicable Percentage of the LC Exposure attributable to such Letter of Credit will be 100% entirely covered by the Commitments participations therein of the nonNon-Defaulting Banks and/or cash collateral or other arrangements satisfactory to such Issuing Bank provided by the applicable Borrower or applicable Additional Borrower (in a manner and under documentation satisfactory to such Issuing Bank); and
(v) any amount payable to or for the account of any Defaulting Bank in its capacity as a Bank hereunder (whether on account of principal, interest, fees or otherwise, and including any amounts payable to such Defaulting Bank pursuant to Sections 2.10 and 2.11, but excluding any amounts payable to such Defaulting Bank pursuant to Sections 2.13, 2.15, 2.17, 8.3 and 9.3) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, (A) be applied, at such time or times as may be determined by the Administrative Agent, (1) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, (2) second to the payment of any amounts owing by such Defaulting Bank to each Issuing Bank in respect of such Defaulting Bank’s participations in Letters of Credit (and to the extent any such 100% coverage is not achievedamounts shall have been paid by Non-Defaulting Banks as a result of adjustments pursuant to clause (iii) above, by to reimburse such Non-Defaulting Banks for such amounts), (3) third, to cash collateralize participation obligations of such Defaulting Bank in respect of outstanding Letters of Credit (with the concurrent release of an equivalent amount any cash collateral which will be or other collateral security, if any, provided by the applicable Borrower pursuant to this Section) and (4) fourth, to the funding of such Defaulting Bank’s Applicable Percentage of any Borrowing in accordance with Section 2.8(c), and participating interests in any newly issued or increased Letter respect of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.8(c)(i) (and which such Defaulting Bank shall have failed to fund such share as required hereunder, (B) to the extent not participate therein). 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 applied as aforesaid, be held, if so long as such event shall continue or (ii) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, will be 100% covered determined by the Commitments Administrative Agent, as cash collateral for funding obligations of such Defaulting Bank in respect of future Loans hereunder, (C) to the non-Disregarded Banks andextent not applied or held as aforesaid, be applied, pro rata, to the payment of any amounts owing to any Borrower or the Non-Defaulting Banks as a result of any judgment of a court of competent jurisdiction obtained by any Borrower or any Non-Defaulting Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations hereunder and (D) to the extent not applied or held as aforesaid, be distributed to such 100% coverage is not achieved, Defaulting Bank or as otherwise directed 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 issued or increased Letter a court of Credit shall be allocated among the non-Disregarded Banks in a manner consistent with Section 2.8(ccompetent jurisdiction.
(b) (and such Disregarded Bank shall not participate therein). In the event that the Administrative Agent, the Borrower Issuing Banks and the Issuing Banks each agrees Borrowers shall have agreed that a Bank that is a Defaulting Bank has adequately remedied all matters that caused such Bank to be become a Defaulting Bank, then (i) such Bank shall cease to be a Defaulting Bank for all purposes hereof, (ii) the L/C Exposures obligations of the Banks to purchase participations in Letters of Credit under Section 2.18(d) shall be readjusted to reflect be determined on the inclusion basis of such Bank’s Commitment, Banks’ Applicable Percentages and on such date (iii) such Bank shall purchase at par such of the Revolving Loans of the other Banks as the Administrative Agent shall determine may to be necessary in order for such Bank the Loans to hold such Revolving Loans be held by the Banks in accordance with their Applicable Percentages.
(c) No Commitment of any Bank shall be increased or otherwise affected and, except as otherwise expressly provided in this Section, performance by any Borrower and any Additional Borrower of its Revolving Percentageobligations hereunder and under the other Loan Documents shall not be excused or otherwise modified as a result of the operation of this Section. The rights and remedies against, and with respect to, against a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all to other rights and remedies that any Borrower, any Additional Borrower, the Administrative Agent and each BankAgent, the Issuing Banks or any Non-Defaulting Bank may have against such Defaulting Bank (and, for the avoidance of doubt, each Issuing Non-Defaulting Bank or shall have a claim against any Defaulting Bank for any losses it may suffer as a result of the Borrower may at any time have against, or with respect to, such Defaulting Bankoperation of this Section).
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document 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) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a5.04(a);. Each Defaulting Bank shall be entitled to receive Letter of Credit Fees under Section 5.04(b) for any period during which such 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 Commitment The Commitments and Outstanding Extensions of Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.1); provided, that this clause (b11.01) 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 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 which requires 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 Loan Documents, in each case without the consent of such Bank;Banks consent.
(c) if any L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;
(i) all All or any part of the any Swingline Exposure or L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, Applicable Percentages but only to the extent the sum of all such reallocation does not cause any non-Defaulting Banks’ Outstanding Extensions of Credit plus Bank to exceed its Commitment; provided that if 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, or can only partially, be effected, the one or more Borrowers shall, without prejudice to any right or remedy available to any Borrower shallhereunder or under law, within two Business Days following the Borrower’s receipt of written notice by the Administrative AgentAgent (x) first, prepay such Swingline Exposure, and (y) second, cash collateralize for the benefit of the applicable each Issuing Banks only the Bank such Borrower’s obligations corresponding to such Defaulting Bank’s L/C Exposure (after giving effect to any partial reallocation pursuant to described in this clause (i) abovec)) in accordance with the procedures set forth in Section 8.2 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.
(iiid) if the If a Borrower cash collateralizes any portion of such Defaulting Bank’s L/C Exposure to such Borrower pursuant to clause (iic) above, the such Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c5.04(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;.
(ive) if all or any portion of such Defaulting Bank’s If the L/C Exposure is of the non-Defaulting Banks are reallocated pursuant to clause (ic) 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 pursuant to Sections 5.04(a) and (b) shall be adjusted in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocation; andApplicable Percentages.
(vf) if If all or any portion of such Defaulting Bank’s L/C Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (iic) above, then, without prejudice to any rights or remedies of any the Issuing Bank Banks or any other Bank hereunder, all Letter of Credit participation fees 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 Exposure) and Letter of Credit Fees payable under Section 2.5(c)(i5.04(b) with respect to such Defaulting Bank’s unreallocated L/C Exposure shall be payable payable, on a pro rata basis, to the Issuing Banks, ratably based on the portion of such L/C Exposure attributable to Letters of Credit issued by Banks until 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;and/or reallocated.
(dg) so So long as such Bank is a Defaulting Bank, no Issuing Bank Swingline Banks shall be required to issue, amend or increase fund any Letter of Credit, unless Swingline Loan 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 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 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless unless, in each case, the applicable Swingline Bank or Issuing Banks are Bank is satisfied that the Disregarded Bank’s then outstanding L/C Exposure, related exposure will be 100% covered by the Commitments of the non-Disregarded Banks andDefaulting Banks, cash collateral provided pursuant to clause fifth of Section 5.19(h) below and/or cash collateral provided by any Borrower in accordance with Section 5.19(c).
(h) Any payment of 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 or times as may be determined by the Administrative Agent as follows: first, to the extent payment of any amounts owing by such 100% coverage is not achievedDefaulting 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 collateral collateralize the Issuing Banks’ exposure with respect to such Defaulting Bank; fourth as the Borrowers 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 will be provided 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 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 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, to the payment of any amounts owing to the Banks, the 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 Defaulting Bank’s breach of its obligations under this Agreement; seventh, so long as no Event of Default or Unmatured Event of Default exists, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement; and eighth, 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 Advances or Reimbursement Obligations in the manner consistent with Section 2.8(c)respect of which such Defaulting Bank has not fully funded its proportionate share, and participating interests in any newly issued (y) such Advances were made or increased Letter 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 allocated among applied solely to pay the Advances of, and Reimbursement Obligations owed to, all non-Disregarded 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 Banks pro rata in accordance with the Commitments without giving effect to Section 5.19(c). Any payments, prepayments or other amounts paid or payable to a manner consistent with Section 2.8(cDefaulting Bank that are applied (or held) (and such Disregarded to pay amounts owed by a Defaulting Bank shall not participate therein). be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
(i) In the event that the Administrative Agent, the Borrower Borrowers, each Swingline Bank and the each Issuing Banks each agrees Bank agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks Aggregate Revolving Credit Exposure shall be readjusted to reflect the inclusion of such Bank’s Commitment, Commitment and on such date such Bank shall purchase at par such of the Revolving Loans Advances 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 Revolving Loans Advances in accordance with its Revolving Applicable Percentage. .
(j) The rights and remedies againstBorrowers may terminate the unused amount of the Commitment of any Bank that is a Defaulting Bank upon not less than three Business Days’ prior notice to the Administrative Agent (which shall promptly notify the Banks thereof), and with respect to, a in such event the provisions of Section 5.19(c) will apply to all amounts thereafter paid by the Borrowers for the account of such Defaulting Bank under this Section 2.8 are in addition toAgreement (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 cumulative and (ii) such termination shall not in limitation ofbe deemed to be a waiver or release of any claim any Borrower, all other rights and remedies that the Administrative Agent and each Agent, any Issuing Bank, each Issuing any Swingline Bank or the Borrower any Bank may at any time have against, or with respect to, against such Defaulting Bank.
Appears in 1 contract
Defaulting Banks. Notwithstanding anything contained in Sections 2.8, 2.9 or any other 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) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions then: all Letters of Credit Outstanding and Swing Loans outstanding at such time, and all Letters of such Defaulting Bank shall not be included in determining whether all Banks (Credit issued or each Bank) 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 10.1); provided, that this clause (b) shall not apply to the vote of Swing Loans made while there exists 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 Loan Documents, in each case without the consent of such Bank;
(c) if any L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;
(i) all or any part of the L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving PercentagesRatable Shares (such Ratable Shares shall be determined without reference to each Defaulting Lender'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’ Outstanding Extensions ' 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 plus Outstanding at such Defaulting Bank’s L/C Exposure time does not exceed the total of all non-Defaulting Banks’ Commitments;
' 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 Commitment of such Bank minus (ii) if 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 clause (i) above the preceding sentence cannot, or can only partially, be effected, the Borrower shall, Borrowers shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, (1) first, prepay outstanding Swing Loans and (2) 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 's portion of Letters of Credit Outstanding (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 immediately preceding sentence). To the extent such L/C Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion Letters of such Defaulting Bank’s L/C Exposure Credit Outstanding and Swing Loans are reallocated pursuant to clause (ii) abovethis Section 2.14, then the Borrower shall not be required fees payable to pay any fees to such Defaulting Bank the Banks pursuant to Section 2.5(c2.8.2 (but not Section 2.3) 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 adjusted in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocation; and
(v) if all or any ' Ratable Shares. To the extent a portion of such the Defaulting Bank’s L/C Exposure is neither reallocated nor 's Letters of Credit outstanding are cash collateralized pursuant to clause (i) or (ii2) above, the Borrowers shall not be obligated to pay any fees to or for the account of such Defaulting Bank 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 Section 2.14, or the Defaulting Bank's Ratable Share of Letters of Credit Outstanding have not been cash collateralized, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Bank hereunder, all Letter of Credit participation fees Commitment Fees that otherwise would have been payable to such Defaulting Bank under Section 2.5(c)(i(solely with respect to the portion of such Defaulting Bank's Commitment that was utilized by such Letters of Credit Outstanding) and Letter of Credit Fees with respect to such Defaulting Bank’s unreallocated L/C Exposure 's Ratable Share of the Letters of Credit Outstanding shall be payable to the Issuing Banks, ratably based on the portion Bank. Nothing contained in this Section or elsewhere in this Agreement and no reallocation 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 any Defaulting Bank, no Issuing Bank 's Ratable Share of any obligation hereunder shall be required to issue, amend or increase any Letter of Credit, unless 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 issued or increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.8(c)(i) (and relieve such Defaulting Bank shall not participate therein). If (i) a Bankruptcy Event or a Bail-In Action with respect of its obligation to a Parent fund any portion of any amount owed by such Defaulting Bank shall occur following the date hereof and for so long as such event shall continue or (ii) the Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations to extend credit generally (such Bank referenced in clauses (i) and (ii), a “Disregarded Bank”), the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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)hereunder. In the event that the Administrative Agent, the Borrower Borrower, and the Issuing Banks each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures Letters of Credit Outstanding and the Banks Swing Loans outstanding shall be readjusted to reflect the inclusion of such Bank’s Commitment, 's Commitment and on such date date, such Bank shall purchase at par such of the Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting BankRatable Share.
Appears in 1 contract
Defaulting Banks. Notwithstanding (a) If any provision Letters of this Agreement or any other Loan Document to Credit are outstanding at the contrary, if any time a Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions of Credit of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) 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 10.1); 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 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 Loan DocumentsCommitments have not been terminated in accordance with Section 8.01, in each case without the consent of such Bank;
(c) if any L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;:
(i) so long as no Default has occurred and is continuing, all or any part of the L/C Exposure participations in outstanding Letters of such Defaulting Bank Credit shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the nonBanks that are Non-Defaulting Banks in accordance with their respective Revolving Percentages, Applicable Percentages (disregarding any Defaulting Bank's Commitment) but only to the extent that the sum of (A) the aggregate principal amount of all nonAdvances made by the Non-Defaulting Banks (in their capacity as Banks) and outstanding at such time, plus (B) the Non-Defaulting Banks’ Outstanding Extensions of Credit ' aggregate LC Exposures, plus (C) such Defaulting Bank’s L/C Exposure 's LC Exposure, does not exceed the total of all nonNon-Defaulting Banks’ ' Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, Company shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agentany Issuing Bank, cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Bank’s L/C '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 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 (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 participation or a portion thereof is collateralized, no fees that otherwise would have been 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 such Defaulting Bank the Banks pursuant to Section 2.5(c)(i4.01(b)(i) with respect to such Defaulting Bank’s reallocated L/C Exposure shall be payable to the non-Defaulting Banks adjusted in accordance with such nonthe Non-Defaulting Banks’ Revolving ' Applicable Percentages after giving effect to such reallocationof Letters of Credit as reallocated; andor
(viv) if all or to the extent any portion of such Defaulting Bank’s L/C Exposure 's Applicable Percentage of Letters of Credit is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.07(a), then, without prejudice to any rights or remedies of any Issuing Bank or any other Bank hereunder, all Letter letter of Credit participation credit fees that otherwise would have been payable to such Defaulting Bank under Section 2.5(c)(i4.01(b)(i) with respect to such Defaulting Bank’s unreallocated L/C Exposure 's Applicable Percentage of Letters of Credit that has not been reallocated or collateralized shall be payable to the applicable Issuing Banks, ratably based on the portion Bank until such Defaulting Bank's Applicable Percentage 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 has been fully cash collateralized pursuant to clause (i) or (ii) above;and/or reallocated.
(db) so So long as such any Bank is a Defaulting Bank, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Exposure, related exposure will be 100% covered by the Commitments of the nonNon-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower Company in accordance with Section 2.8(c2.07(a) or provided in accordance with Section 2.07(g), and participating interests in any such newly issued issued, amended or increased Letter of Credit shall be allocated among nonNon-Defaulting Banks in a manner consistent with Section 2.8(c)(i2.07(a)(i) (and such Defaulting Bank Banks shall not participate therein). If .
(ic) a Bankruptcy Event or a Bail-In Action with respect to a Parent No Commitment of any Bank shall occur following be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.07, performance by the date hereof and for so long as such event shall continue or (ii) the Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling Company of its obligations to extend credit generally (such Bank referenced in clauses (i) and (ii), a “Disregarded Bank”), the Issuing Bank shall not be required to issue, amend excused or increase any Letter of Credit, unless the Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments otherwise modified as a result of the non-Disregarded Banks andoperation of this Section 2.07. The rights and remedies against a Defaulting Bank under this Section 2.07 are in addition to any other rights and remedies which the Company, 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 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 Administrative Agent, any Bank or any Issuing Bank may have against such Defaulting Bank.
(d) [Reserved].
(e) [Reserved].
(f) If the Borrower Company, the Administrative Agent and the each Issuing Banks each agrees Bank agree in writing in their reasonable determination that a Defaulting Bank has adequately remedied all matters that caused such Bank should no longer be deemed to be a Defaulting Bank, then the L/C Exposures Administrative Agent will so notify the parties hereto, whereupon as of the Banks shall be readjusted effective date specified in such notice and subject to reflect any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Bank will, to the inclusion extent applicable, purchase, at par, that portion of such Bank’s Commitment, and on such date such Bank shall purchase at par such of the Revolving Loans outstanding Advances of the other Banks or take such other actions as the Administrative Agent shall may determine may to be necessary to cause the Advances and funded and unfunded participations in order for such Bank Letters of Credit to hold such Revolving Loans be held on a pro rata basis by the Banks in accordance with its Revolving Percentage. The rights and remedies againsttheir Applicable Percentages (without giving effect to Section 2.07(a)), and whereupon such Bank will cease to be a Defaulting Bank; provided that no adjustments will be made retroactively with respect toto fees accrued or payments made by or on behalf of the Company while that Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to 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 Section 2.8 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 in addition tothen outstanding; fifth, and cumulative and not in limitation of, all other rights and remedies that if so determined by the Administrative Agent and each Bankthe Company, each Issuing to be held in a cash collateral account and released in order to satisfy obligations of such Defaulting Bank or to fund Advances under this Agreement; sixth, if so determined by the Borrower may at any time have againstAdministrative Agent and the Company, or with respect to, 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 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) Commitment Fees fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a)3.1;
(b) the Commitment and Outstanding Extensions of Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.1); provided9.4, provided that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of such Bank all Banks or each affected Bank which affects such Defaulting Bank differently than other 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 Loan Documents, in each case without require the consent of such Defaulting Bank);
(c) if any L/C Letter of Credit Obligations shall exist at the time such a Bank becomes a Defaulting Bank then;:
(i1) all or any part of the L/C Exposure unfunded participations in and commitments with respect to Letters of such Defaulting Bank Credit shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, Pro-Rata Shares but only to the extent (y) the sum of all non-Defaulting Banks’ Outstanding Extensions of Credit Exposure plus such Defaulting Bank’s L/C Exposure 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;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.
(ii2) if the reallocation described in clause (i1) above cannot, or can only partially, be effected, the Borrower shall, shall within two three Business Days following the Borrower’s receipt of written notice by the Administrative Agent, 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) Pro-Rata Share of the Letter of Credit Obligations in accordance with the procedures set forth in Section 8.2 below for so long as such L/C LC Exposure is outstanding;
(iii3) if the Borrower cash collateralizes any portion of such Defaulting Bank’s L/C LC Exposure pursuant to clause (ii2) above, the Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c2.3(b) with respect to such Defaulting Bank’s L/C LC Exposure during the period such Defaulting Bank’s L/C LC 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
(v4) if all or any portion of such Defaulting Bank’s L/C LC Exposure is neither reallocated nor not cash collateralized pursuant to clause (i) or (ii2) above, then, without prejudice to any rights or remedies of any the Issuing Bank Bank(s) or any other Bank hereunder, all Letter of Credit participation fees that otherwise would have been Fees payable to such Defaulting Bank under Section 2.5(c)(i2.2(b) with respect to such Defaulting Bank’s unreallocated L/C LC Exposure shall be payable to the Issuing BanksBank(s) until such LC Exposure is cash collateralized; Subject to Section 3.11, ratably based on the portion no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Bank arising from that Bank having become a Defaulting Bank, including any claim of a non-Defaulting Bank as a result of such L/C Exposure attributable to Letters of Credit issued by each Issuing non-Defaulting Bank, until and to the extent that ’s increased exposure following such L/C Exposure is reallocated and/or cash collateralized pursuant to clause (i) or (ii) above;reallocation.
(d) so long as such any Bank is a Defaulting Bank, no the Issuing Bank Bank(s) shall not be required to issue, amend issue or increase modify any Letter of Credit, unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Exposure, related 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(c3.8(c); and
(e) any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 2.18(b)) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) 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), and (iii) third, to the funding of any Revolving Credit Loan or the funding or cash collateralization of any participating interests interest in 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 respect of which such Defaulting Bank shall not participate therein). If (i) a Bankruptcy Event or a Bail-In Action with respect has failed to a Parent of any Bank shall occur following the date hereof and for so long fund its portion thereof as such event shall continue or (ii) 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)required by this Agreement, a “Disregarded Bank”), the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, will be 100% covered as determined 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 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 Administrative Agent, the Borrower and the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank(iv) fourth, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as if so determined by the Administrative Agent shall determine may be necessary and the Borrower, held in order such account as cash collateral for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a future funding obligations of the Defaulting Bank under this Section 2.8 are in addition toAgreement, and cumulative and not in limitation of(v) fifth, all other rights and remedies that to the Administrative Agent and each Bank, each Issuing Bank payment of any amounts owing to the Borrower or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Borrower may at or any time have against, or with respect to, Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, (vi) sixth, if so determined by the Administrative Agent, distributed to the Banks other than the Defaulting Bank until the ratio of the Outstanding Credit Exposure of such Banks to the Aggregate Outstanding Credit Exposure equals such ratio immediately prior to the Defaulting Bank’s failure to fund any portion of any Loans or participations in Letters of Credit and (vii) seventh, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided, that if such payment is a prepayment of the principal amount of any Loans or Reimbursement Obligations in respect of draws under Letters of Credit with respect to which the applicable Issuing Bank has funded its participation obligations, such payment 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 prepayment of any Loans, or Reimbursement Obligations owed to, any Defaulting Bank.
Appears in 1 contract
Sources: Credit Agreement (CERNER 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) Commitment Fees shall cease Notwithstanding anything to accrue on the unfunded portion contrary contained herein, the Maximum Credit Amount of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions of Credit of such a Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority 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, amendment or waiver or other modification pursuant to Section 10.114.2); providedprovided that, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of such Bank all Banks or each affected Bank which affects such Defaulting Bank differently than other affected thereby if such Bank is an affected Bank; provided, further, that there Banks 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 Loan Documents, in each case without require the consent of such Defaulting Bank;.
(cb) if If any L/C Obligations exist at Bank shall fail to make any payment referenced in clause (a) or (b) of the time such Bank becomes a definition of “Defaulting Bank then;
Bank”, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) all or apply any part of the L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, but only to the extent the sum of all non-Defaulting Banks’ 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, or can only partially, be effected, the Borrower shall, within two Business Days following the Borrower’s receipt of written notice amounts thereafter received by the Administrative Agent, cash collateralize Agent for the account of such Bank and for the benefit of the applicable Issuing Banks only the BorrowerAdministrative Agent or any Letter of Credit Issuer to satisfy such Bank’s obligations corresponding to hereunder until all 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 unsatisfied obligations are fully paid, and/or (ii) abovehold any such amounts in a segregated account as cash collateral for, the Borrower shall not be required to pay and application to, 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 future funding obligations 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 ; in the case 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 each 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, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 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 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) 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)) above, a “Disregarded Bank”), in any order as determined by the Issuing Bank Administrative Agent in its discretion.
(c) Borrower shall not be required obligated to issue, amend or increase pay the Administrative Agent any Letter of Credit, unless the Issuing Banks are satisfied that the Disregarded Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments ratable share of the non-Disregarded Banks andfees described in Sections 2.11, 2.12 or 2.13 (notwithstanding anything to the extent contrary in such 100% coverage is not achieved, by cash collateral which will be provided by sections) for the Borrower in period commencing on the manner consistent with Section 2.8(c), and participating interests in 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 day such Disregarded Defaulting Bank shall not participate therein). In the event that the Administrative Agent, the Borrower and the Issuing Banks each agrees that becomes a Defaulting Bank has adequately remedied all matters that caused and continuing for so long as such Bank continues to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document 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) Commitment Fees shall cease to accrue on the unfunded portion of neither the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) nor the Commitment and Outstanding Extensions of Credit Loans of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.19.05); providedprovided that any waiver, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks which affects such Defaulting Bank or each Bank differently than other affected thereby if Banks shall require the consent of such Bank is an affected Defaulting Bank; providedprovided further that no waiver, further, that there shall not be any amendment, amendment or modification or waiver of the type described in clause (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 of Section 9.05 may be made without the written consent of any Defaulting Bank affected thereby;
(b) the Company may, at its sole expense, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the assignment restrictions contained in Section 9.06, with the Company or transfer by the Borrower of any replacement Bank paying the processing and recording fee), all of its respective interests, rights and obligations under this Agreement and to an Assignee that shall assume such obligations (which Assignee may be another Bank, if a Bank accepts such assignment); provided that (i) the other Loan Documents, in each case without Company shall have received the prior written consent of the Administrative Agent to such Bankassignment (to the extent such consent would otherwise be required pursuant to Section 9.06), which consent shall not unreasonably be withheld, and (ii) such Defaulting Bank shall have received payment of an amount equal to the outstanding 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 principal and accrued interest and fees) or the Company;
(c) if any L/C Obligations exist at facility fees shall cease to accrue on the time such Bank becomes a Defaulting Bank then;
(i) all or any part unused portion of the L/C Exposure Commitment of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, but only to the extent the sum of all non-Defaulting Banks’ 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, 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, 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) above2.08;
(d) so long as such notwithstanding any contrary provision in this Agreement, the Company may (i) prepay, without penalty or premium, the Loans made by a Defaulting Bank is and (ii) terminate the unused amount of the Commitment of a Defaulting Bank, no Issuing Bank shall in each case, (x) without pro rata prepayment of Loans of other Banks or pro rata termination of Commitments of other Banks and (y) upon not less than two Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof), it being understood that such prepayment and termination will not be required deemed to issue, amend be a waiver or increase release of any Letter of Credit, unless claim the Issuing Banks are satisfied that Company or the Administrative Agent may have against such Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered by ; and
(e) nothing in this Section shall affect any rights or remedies the Commitments of the non-Company may have against any 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 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 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 and on the date that the Administrative Agent, the Borrower Agent and the Issuing Banks Company each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights Commitment and remedies against, and with respect to, such Bank shall no longer be a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 1 contract
Defaulting Banks. Notwithstanding anything contained in Sections 2.8, 2.9 or any other 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) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions then: all Letters of Credit Outstanding and Swing Loans outstanding at such time, and all Letters of such Defaulting Bank shall not be included in determining whether all Banks (Credit issued or each Bank) 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 10.1); provided, that this clause (b) shall not apply to the vote of Swing Loans made while there exists 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 Loan Documents, in each case without the consent of such Bank;
(c) if any L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;
(i) all or any part of the L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving PercentagesRatable 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’ Outstanding Extensions ' 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 plus Outstanding at such Defaulting Bank’s L/C Exposure time does not exceed the total of all non-Defaulting Banks’ Commitments;
' 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) if 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 clause (i) above the preceding sentence cannot, or can only partially, be effected, the Borrower shall, Borrowers shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, (1) first, prepay outstanding Swing Loans and (2) 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 's portion of Letters of Credit Outstanding (in each case, 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 immediately preceding sentence). To the extent such L/C Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion Letters of such Defaulting Bank’s L/C Exposure Credit Outstanding and Swing Loans are reallocated pursuant to clause (ii) abovethis Section 2.14, then the Borrower shall not be required fees payable to pay any fees to such Defaulting Bank the Banks pursuant to Section 2.5(c2.8.2 (but not Section 2.3) 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 adjusted in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocation; and
(v) if all or any ' Ratable Shares. To the extent a portion of such the Defaulting Bank’s L/C Exposure is neither reallocated nor 's Letters of Credit outstanding are cash collateralized pursuant to clause (i) or (ii2) above, the Borrowers shall not be obligated to pay any fees to or for the account of such Defaulting Bank 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 Section 2.14, or the Defaulting Bank's Ratable Share of Letters of Credit Outstanding have not been cash collateralized, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Bank hereunder, all Letter of Credit participation fees Commitment Fees that otherwise would have been payable to such Defaulting Bank under Section 2.5(c)(i(solely with respect to the portion of such Defaulting Bank's Commitment that was utilized by such Letters of Credit Outstanding) and Letter of Credit Fees with respect to such Defaulting Bank’s unreallocated L/C Exposure 's Ratable Share of the Letters of Credit Outstanding shall be payable to the Issuing Banks, ratably based on the portion Bank. Nothing contained in this Section or elsewhere in this Agreement and no reallocation 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 any Defaulting Bank, no Issuing Bank 's Ratable Share of any obligation hereunder shall be required to issue, amend or increase any Letter of Credit, unless 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 issued or increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.8(c)(i) (and relieve such Defaulting Bank shall not participate therein). If (i) a Bankruptcy Event or a Bail-In Action with respect of its obligation to a Parent fund any portion of any amount owed by such Defaulting Bank shall occur following the date hereof and for so long as such event shall continue or (ii) the Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations to extend credit generally (such Bank referenced in clauses (i) and (ii), a “Disregarded Bank”), the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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)hereunder. In the event that the Administrative Agent, the Borrower Borrower, and the Issuing Banks each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures Letters of Credit Outstanding and the Banks Swing Loans outstanding shall be readjusted to reflect the inclusion of such Bank’s Commitment, 's Revolving Credit Commitment and on such date date, such Bank shall purchase at par such of the Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting BankRatable Share.
Appears in 1 contract
Sources: Credit Agreement (Triumph Group Inc)
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document 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) Commitment Fees shall cease to accrue on the unfunded portion of neither the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) nor the Commitment and Outstanding Extensions of Credit Loans of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.19.05); providedprovided that any waiver, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks which affects such Defaulting Bank or each Bank differently than other affected thereby if Banks shall require the consent of such Bank is an affected Defaulting Bank; provided, furtherfurther that no waiver, that there shall not be any amendment, amendment or modification or waiver of the type described in clause (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 of Section 9.05 may be made without the written consent of any Defaulting Bank affected thereby;
(b) the Company may, at its sole expense, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the assignment restrictions contained in Section 9.06, with the Company or transfer by the Borrower of any replacement Bank paying the processing and recording fee), all of its respective interests, rights and obligations under this Agreement and to an Assignee that shall assume such obligations (which Assignee may be another Bank, if a Bank accepts such assignment); provided that (i) the other Loan Documents, in each case without Company shall have received the prior written consent of the Administrative Agent to such Bankassignment (to the extent such consent would otherwise be required pursuant to Section 9.06), which consent shall not unreasonably be withheld, delayed or conditioned, and (ii) such Defaulting Bank shall have received payment of an amount equal to the outstanding 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 principal and accrued interest and fees) or the Company;
(c) if any L/C Obligations exist at facility fees shall cease to accrue on the time such Bank becomes a Defaulting Bank then;
(i) all or any part unused portion of the L/C Exposure Commitment of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, but only to the extent the sum of all non-Defaulting Banks’ 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, 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, 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) above2.08;
(d) so long as such notwithstanding any contrary provision in this Agreement, the Company may (i) prepay, without penalty or premium, the Loans made by a Defaulting Bank is and (ii) terminate the unused amount of the Commitment of a Defaulting Bank, no Issuing Bank shall in each case, (x) without pro rata prepayment of Loans of other Banks or pro rata termination of Commitments of other Banks and (y) upon not less than two Domestic Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof), it being understood that such prepayment and termination will not be required deemed to issue, amend be a waiver or increase release of any Letter of Credit, unless claim the Issuing Banks are satisfied that Company or the Administrative Agent may have against such Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered by ; and
(e) nothing in this Section shall affect any rights or remedies the Commitments of the non-Company may have against any 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 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 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 and on the date that the Administrative Agent, the Borrower Agent and the Issuing Banks Company each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights Commitment and remedies against, and with respect to, such Bank shall no longer be a Defaulting Bank under this Bank. Each party hereto agrees that (a) an assignment required pursuant to Section 2.8 are in addition to2.16(b) may be effected pursuant to an Assignment and Assumption executed by the Company, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each the assignee and (b) the Bank required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Bank, each Issuing Bank provided, further that any such documents shall be without recourse to or warranty by the Borrower may at any time have against, or with respect to, such Defaulting Bankparties thereto.
Appears in 1 contract
Defaulting Banks. (a) 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:
(ai) Commitment Fees facility fees shall cease to accrue accrue, or to be payable by the Borrower, on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a)2.09(a) for the account of such Defaulting Bank or otherwise;
(bii) 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 and Outstanding Extensions of or Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.19.05); provided, however, that this clause (biii) 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 if (and in circumstances where the consent of “all Banks” is required, such Bank is an affected Defaulting Bank; provided, further, that there ’s vote shall not be any amendment, modification included except (A) such Defaulting Bank’s Commitment may not be increased or waiver extended without its consent and (iB) of any provision of Section 4.2 or Section 10.1 in a manner that would alter the pro rata sharing of payments required therebyprincipal amount of, or (ii) causing interest or fees payable on, Loans or L/C Borrowings may not be reduced or excused or the reduction scheduled date of the percentage specified in the definition of Majority Banks, or (iii) causing the consent payment may not be postponed as to the assignment or transfer by the Borrower of any of its respective rights and obligations under this Agreement and the other Loan Documents, in each case such Defaulting Bank without the consent of such Defaulting Bank;’s consent); and
(civ) if any L/C Obligations exist Advance exists at the time such Bank becomes a Defaulting Bank then;:
(iA) provided that no Default or Event of Default exists, all or any part of the L/C Exposure Advance of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, Pro Rata Shares but only to the extent the sum of the aggregate Outstanding Amount of the Revolving Loans of all non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s L/C Exposure Advance does not exceed the total of all non-Defaulting Banks’ Commitments;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, the Borrower shall, shall within two one Domestic Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, cash collateralize Agent Cash Collateralize for the benefit of the applicable Issuing Banks Bank only the Borrower’s obligations corresponding to such Defaulting Bank’s L/C Exposure Advance (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 8.2 2.20(e)(i) for so long as such L/C Exposure LC Advance is outstanding;
(iiiC) if the Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Bank’s L/C Exposure Advance pursuant to clause (iiB) above, the Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c2.09(c) with respect to such Defaulting Bank’s L/C Exposure Advance during the period such Defaulting Bank’s L/C Exposure Advance is cash collateralizedCash Collateralized;
(ivD) if the L/C Advances 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 Exposure Advance is neither reallocated nor Cash Collateralized 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 (iA) or (iiB) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Bank hereunder, all Letter of Credit participation 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 Advance) and letter of credit fees payable under Section 2.5(c)(i2.09(c) with respect to such Defaulting Bank’s unreallocated L/C Exposure Advance 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, Bank until and to the extent that such L/C Exposure Advance is reallocated and/or cash collateralized pursuant to clause (i) or (ii) above;Cash Collateralized; and
(db) so So long as such any Bank is a Defaulting Bank, no the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are it is satisfied that the Defaulting Bank’s 's related exposure and its then outstanding L/C Exposure, Advance will be 100% covered in accordance with the terms of this Agreement by the Commitments of the non-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower in accordance with Section 2.8(c2.19(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 2.8(c)(i2.19(a)(iv)(A) (and such Defaulting Bank shall not participate therein). 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 Administrative Agent, the Borrower Borrower, and the Issuing Banks Bank each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures Advances of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment, Commitment and on such date such Bank shall purchase at par such of the Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights Pro Rata Share.
(c) At the Borrower’s option, the Borrower may elect to terminate the Commitment of any Defaulting Bank upon notice to such Defaulting Bank and remedies againstthe Administrative Agent (irrespective of whether such Defaulting Bank holds any outstanding Loans) and 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 with respect tosuch Loans are not assigned pursuant to Section 2.18 or otherwise, a 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 Commitment under this Section 2.8 are in addition to2.19, the Borrower shall (x) to the extent applicable after giving effect to Section 2.19(a)(iv) and cumulative 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 Letters of Credit, (y) subject to Section 2.19(a), pay or cause to be paid all accrued facility fees or Letter of Credit Fees payable to such Bank and not in limitation of, all other rights amounts due and remedies that payable to such Bank hereunder and (z) if such Bank is an Issuing Bank, the Borrower shall pay to the Administrative Agent and each for deposit an amount equal to the available amount of all Letters of Credit issued by such Issuing Bank, each Issuing and upon such payments, the obligations of such Bank or the Borrower may at any time have against, or hereunder with respect toto such unused Commitment which have been terminated shall, such Defaulting Bankby the provisions hereof, be released and discharged.
Appears in 1 contract
Sources: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document 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) Commitment Fees shall cease to accrue on the unfunded portion of neither the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) nor the Commitment and Outstanding Extensions of Credit Loans of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.19.05); providedprovided that any waiver, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks which affects such Defaulting Bank or each Bank differently than other affected thereby if Banks shall require the consent of such Bank is an affected Defaulting Bank; provided, furtherfurther that no waiver, that there shall not be any amendment, amendment or modification or waiver of the type described in clause (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 of Section 9.05 may be made without the written consent of any Defaulting Bank affected thereby;
(b) the Company may, at its sole expense, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the assignment restrictions contained in Section 9.06, with the Company or transfer by the Borrower of any replacement Bank paying the processing and recording fee), all of its respective interests, rights and obligations under this Agreement and to an Assignee that shall assume such obligations (which Assignee may be another Bank, if a Bank accepts such assignment); provided that (i) the other Loan Documents, in each case without Company shall have received the prior written consent of the Administrative Agent to such Bankassignment (to the extent such consent would otherwise be required pursuant to Section 9.06), which consent shall not unreasonably be withheld, delayed or conditioned, and (ii) such Defaulting Bank shall have received payment of an amount equal to the outstanding 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 principal and accrued interest and fees) or the Company;
(c) if notwithstanding any L/C Obligations exist at contrary provision in this Agreement, the time such Bank becomes Company may (i) prepay, without penalty or premium, the Loans made by a Defaulting Bank then;
and (iii) all or any part terminate the unused amount of the L/C Exposure Commitment of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank, in each case, (x) among the non-Defaulting without pro rata prepayment of Loans of other Banks in accordance with their respective Revolving Percentages, but only or pro rata termination of Commitments of other Banks and (y) upon not less than two Domestic Business Days’ prior notice to the extent Administrative Agent (which will promptly notify the sum Banks thereof), it being understood that such prepayment and termination will not be deemed to be a waiver or release of all non-Defaulting Banks’ Outstanding Extensions of Credit plus any claim the Company or the Administrative Agent may have against 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, 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, 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
(vd) 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 nothing in this Section shall affect any rights or remedies of the Company may have against 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, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 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 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 and on the date that the Administrative Agent, the Borrower Agent and the Issuing Banks Company each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights Commitment and remedies against, and with respect to, such Bank shall no longer be a Defaulting Bank under this Bank. Each party hereto agrees that (a) an assignment required pursuant to Section 2.8 are in addition to2.16(b) may be effected pursuant to an Assignment and Assumption executed by the Company, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each the assignee and (b) the Bank required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Bank, each Issuing Bank provided, further that any such documents shall be without recourse to or warranty by the Borrower may at any time have against, or with respect to, such Defaulting Bankparties thereto.
Appears in 1 contract
Sources: 364 Day Term Loan Credit Agreement (Rockwell Automation, Inc)
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 Administrative Agent shall deliver written notice to such effect, upon the Administrative 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) Commitment Fees shall cease to accrue on the unfunded portion of with respect to the Commitment of such Defaulting Bank pursuant to Section 3.2(a);2.5.
(b) the The Commitment and Outstanding Extensions of Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.19.1); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of such Bank all Banks or each affected Bank which affects such Defaulting Bank differently than other affected thereby if such Bank is an affected Bank; provided, further, that there Banks 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 Loan Documents, in each case without require the consent of such Defaulting Bank;.
(c) if If any L/C Obligations exist at the time such a Bank becomes a Defaulting Bank Bank, then;:
(i) all or any part of the such L/C Exposure of such Defaulting Bank Obligations shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks ratably in accordance with their respective Revolving Percentages, Commitments but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Extensions of Revolving Credit plus such Defaulting Bank’s L/C Exposure Exposures does not then exceed the total of all non-Defaulting Banks’ CommitmentsCommitments and (y) the conditions set forth in Section 4.4 are satisfied at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, Company shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, Agent cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to percentage such Defaulting Bank’s Commitment represents of the Total Commitment of the L/C Exposure Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 8.2 7.2 for so long as such L/C Exposure is Obligations are outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Bank’s L/C Exposure Obligations pursuant to clause (ii) abovethis Section 2.23(c), the Borrower Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c) 3.3 with respect to such Defaulting Bank’s portion of the L/C Exposure Obligations during the period of such Defaulting Bank’s L/C Exposure is cash collateralizedcollateralization;
(iv) if all or any portion of such Defaulting Bank’s the L/C Exposure is reallocated pursuant to clause (i) above, then the Letter Obligations 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 are reallocated pursuant to this Section 2.23(c), then the fees payable to the Banks pursuant to Section 3.3 shall be adjusted ratably in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocationtheir respective Commitments; and
(v) if all or any portion of such Defaulting Bank’s L/C Exposure is Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.23(c), then, without prejudice to any rights or remedies of any the applicable Issuing Bank or any other Bank hereunder, all Letter of Credit participation fees 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 2.5(c)(i) 3.3 with respect to such Defaulting Bank’s unreallocated L/C Exposure Obligations shall be payable to the applicable Issuing Banks, ratably based on the portion of Bank until 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 Obligations are cash collateralized pursuant to clause (i) or (ii) above;and/or reallocated.
(d) so So long as such any Bank is a Defaulting Bank, no the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Exposure, related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower Company in accordance with this Section 2.8(c2.23(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 2.8(c)(i2.23(c)(i) (and such Defaulting Bank Banks shall not participate therein). If .
(e) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 2.17, but excluding amounts payable pursuant to Section 2.24) shall, in lieu of being distributed to such Defaulting Bank, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) a Bankruptcy Event or a Bail-In Action with respect first, to a Parent the payment of any amounts owing by such Defaulting Bank shall occur following to the date hereof and for so long as such event shall continue or Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Bank to the Issuing Bank has a good faith belief that hereunder, (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 Bank has defaulted existing or future participating interest in fulfilling its obligations to extend credit generally (such Bank referenced in clauses (i) and (ii), a “Disregarded Bank”), the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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(iv) fourth, to the extent funding of any Loan in respect of which such 100% coverage is not achievedDefaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Company, held in such account as cash collateral which will be provided for future funding obligations of the Defaulting Bank in respect of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the 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 Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, (vii) seventh, 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 Borrower in the manner consistent Company against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided, with Section 2.8(crespect to this clause (viii), and participating interests that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of any newly issued or increased Letter drafts paid by an Issuing Bank under any Letters of Credit which a Defaulting Bank has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.4 are satisfied, such payment shall be allocated among applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Disregarded Defaulting Banks in a manner consistent with Section 2.8(c) (and such Disregarded Bank shall not participate therein)pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank. In the event that the Administrative Agent, the Borrower Issuing Bank and the Issuing Banks Company each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank or upon receipt by the Administrative Agent of the confirmation referred to in clause (c) of the definition of “Defaulting Bank”, as applicable, then the L/C Exposures of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment, and on such date such Bank shall purchase at par such portion of the Revolving Loans of the other Banks (other than Competitive Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans ratably in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting BankCommitment.
Appears in 1 contract
Sources: Competitive Advance and Revolving Credit Facility Agreement (Southwest Airlines Co)
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) Commitment Fees payable in accordance with Section 2.05(a) shall cease to accrue on the unfunded portion of the Commitment Amount of such Defaulting Bank pursuant to Section 3.2(a)Bank;
(b) the Commitment Amount and Outstanding Extensions of Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment, waiver waiver, or consent pursuant to Section 8.01); provided that any waiver, amendment, consent, or other modification pursuant that (i) reduces the principal of, or interest on, any reimbursement obligation or any fee or other amount payable to Section 10.1); provided, that this clause (b) shall not apply to the vote of a such Defaulting Bank in hereunder, (ii) increases such Defaulting Bank's Commitment Amount, (iii) extends the case Termination Date, (iv) postpones any date fixed for any payment of an amendmentprincipal of, waiver or interest on, any reimbursement obligation, fee or other modification requiring amount payable to such Defaulting Bank hereunder, or (iv) requires 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 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 Loan Documents, in each case without the consent of such Defaulting Bank;
(c) if any L/C Obligations exist Credit Exposure exists at the time such a Bank becomes a Defaulting Bank then;:
(i) all or any part of the L/C such Credit Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Banks’ Outstanding Extensions of ' Credit Exposures plus such Defaulting Bank’s L/C 's Credit Exposure does not exceed the total of all non-Defaulting Banks’ Commitments' Commitment Amounts and (y) the conditions set forth in Section 3.02 are satisfied at such time;
(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, each Applicant may cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Bank’s L/C 's Credit Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with a manner reasonably satisfactory to the procedures set forth in Section 8.2 Administrative Agent and the Issuing Bank for so long as such L/C Credit Exposure is outstanding;
(iii) if the Borrower any Applicant cash collateralizes any portion of such Defaulting Bank’s L/C 's Credit Exposure pursuant to clause (ii) aboveSection 2.12(c), the Borrower Applicants shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c2.05(b) with respect to such Defaulting Bank’s L/C 's Credit Exposure during the period such Defaulting Bank’s L/C 's Credit Exposure is cash collateralized;
(iv) if all or any portion the Credit Exposure 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 is reallocated pursuant to Section 2.12(c), then the fees payable to the Banks pursuant to Section 2.05(a) and Section 2.05(b) shall be adjusted in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocation' Pro Rata Shares; andor
(v) if all or any portion of such Defaulting Bank’s L/C 's Credit Exposure is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) aboveSection 2.12(c), then, without prejudice to any rights or remedies of any the 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)(i2.05(b) with respect to such Defaulting Bank’s unreallocated L/C 's Credit Exposure shall be payable to the Issuing Banks, ratably based on the portion of Bank until 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;and/or reallocated; and
(d) so long as such any Bank is a Defaulting Bank, no the Issuing Bank shall not be required to issue, amend amend, or increase any Letter of CreditLOC, unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Exposure, related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower applicable Applicant in accordance with Section 2.8(c)a manner satisfactory to the Administrative Agent and the Issuing Bank in their sole discretion, and participating interests in any such newly issued or increased Letter of Credit LOC shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.8(c)(i2.12(c)(i) (and such Defaulting Bank shall not participate therein). 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 Administrative Agent, the Borrower Company, and the Issuing Banks Bank each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures Credit Exposure of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment, 's Commitment Amount and on such date such Bank shall purchase at par such of the Revolving Loans of the other Banks participations in outstanding LOCs and LOC Disbursements as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans participations in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting BankPro Rata Share.
Appears in 1 contract
Sources: Letter of Credit Facility Agreement (Sunpower 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) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);2.06.
(b) the Commitment The Commitments and Outstanding Extensions of Credit Loans of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) 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 10.111.04); providedprovided that any waiver, that this clause amendment or modification (bx) shall not apply increasing or extending the term of the Commitment of, reducing amounts owed to or extending the vote final maturity of a the loans of such Defaulting Bank in the case of an amendment, waiver or other modification (y) requiring the consent of such Bank all Banks or each affected Bank which affects such Defaulting Bank differently than other 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 Loan DocumentsBanks shall, in each case without case, require the consent of such Defaulting Bank;
(c) if If any L/C Obligations exist Exposure exists at the time such Bank becomes a Defaulting Bank then;:
(i) all or any part of the L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, Percentages but only to the extent that i) the sum of all non-Defaulting Banks’ Outstanding Revolving Extensions of Credit plus such Defaulting Bank’s L/C Exposure does not exceed the total of all non-Defaulting Banks’ CommitmentsCommitments and ii) with respect to each such non-Defaulting Bank, the sum of such non-Defaulting Bank’s Revolving Extensions of Credit plus its allocated percentage of such Defaulting Bank’s LC Exposure does not exceed such non-Defaulting Bank’s Commitment;
(ii) if If the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, Company shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, Agent cash collateralize for the benefit of the applicable Issuing Banks Lenders only the BorrowerCompany’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 If the Borrower Company cash collateralizes any portion of such Defaulting Bank’s L/C Exposure pursuant to clause (ii) above, the Borrower Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c2.04(c)(i) 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 If the L/C Exposure of the non-Defaulting Bank is reallocated pursuant to clause (i) above, then the Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank the Banks pursuant to Section 2.5(c)(i2.06(a) with respect to such Defaulting Bank’s reallocated L/C Exposure and Section 2.04(c)(i) shall be payable to the non-Defaulting Banks adjusted in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocationPercentages; and
(v) if 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 Lender 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)(i2.04(c)(i) with respect to such Defaulting Bank’s unreallocated L/C Exposure shall be payable to the such Issuing Banks, ratably based on the portion of such L/C Exposure attributable to Letters of Credit issued by each Issuing Bank, Lender until and to the extent that such L/C Exposure is reallocated and/or cash collateralized pursuant to clause (i) or (ii) abovecollateralized;
(d) so long as such Bank is a Defaulting Bank, no Issuing Bank Lender shall be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are it is satisfied that the related exposure and the Defaulting Bank’s then outstanding L/C Exposure, Exposure will be 100% covered by the Commitments of the non-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower Company in accordance with Section 2.8(c2.12(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 2.8(c)(i2.12(c) (and such Defaulting Bank shall not participate therein). If .
(e) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 4.07(b) but excluding Section 5.07) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent and the Issuing Lenders hereunder, (ii) second, to the funding of any Loan or participation in any Letter of Credit 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 or participations in Letters of Credit under this Agreement, (iv) fourth, to the payment of any amounts then owing to the Banks or Issuing Lenders as a Bankruptcy Event result of any judgment of a court of competent jurisdiction obtained by any Bank or Issuing Lender against such Defaulting Bank as a Bail-In Action result of such Defaulting Bank’s breach of its obligations under this Agreement, (v) fifth, to the payment of any amounts then 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 (vi) sixth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided, with respect to this clause (vi), that if such payment is (x) a Parent prepayment of the principal amount of any Bank shall occur following the date hereof and for so long as such event shall continue or (ii) the Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations to extend credit generally (such Bank referenced in clauses (i) Loans and (ii)y) made at a time when the conditions set forth in Section 6.02 are satisfied, a “Disregarded Bank”), such payment shall be applied solely to prepay the Issuing Bank shall not be required to issue, amend or increase any Letter Loans of Credit, unless the Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments of the all non-Disregarded Defaulting Banks and, pro rata prior to being applied to the extent such 100% coverage is not achievedprepayment of any Loans, by cash collateral which will be provided by the Borrower in the manner consistent with Section 2.8(c)or reimbursement obligations owed to, and participating interests in 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)Defaulting Bank. In the event that the Administrative Agent, the Borrower Issuing Lenders and the Issuing Banks Company each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures Exposure of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment, Commitment and on such date such previously Defaulting Bank shall purchase at par such of the Revolving Loans of the other Banks (other than Money Market Loans) as the Administrative Agent shall determine may be necessary in order for such previously Defaulting Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 1 contract
Sources: Revolving Credit Agreement (Motorola Solutions, Inc.)
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) Commitment Fees 2.22.1. The Unused Portion Fee shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);2.9.
(b) the 2.22.2. The Commitment and Outstanding Extensions of Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.111.1); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of such Bank all Banks or each affected Bank which affects such Defaulting Bank differently than any other 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 Loan Documents, in each case without require the consent of such Defaulting Bank;.
(c) if 2.22.3. If any Swing Line Loans or L/C Obligations exist or are outstanding at the time such a Bank becomes a Defaulting Bank Bank, then;:
(ia) all or any part of the such Defaulting Bank’s share of participations in such Swing Line Loans and L/C Exposure of such Defaulting Bank Obligations shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving PercentagesPro Rata Shares, but only to the extent (x) the sum of all non-Defaulting Banks’ Outstanding Extensions of Bank’s Revolving Credit Exposures plus such Defaulting Bank’s share of participations in such Swing Line Loans and L/C Exposure Obligations does not exceed the total of all non-Defaulting Banks’ CommitmentsCommitments and (y) the conditions set forth in Section 3.2 are satisfied at such time;
(iib) if the reallocation described in clause (ia) above cannot, not be effected or can only partially, partially be effected, the Borrower shall, shall within two one (1) Business Days Day following the Borrower’s receipt of written notice by the Administrative AgentAgent (x) first, prepay such Swing Line Loans and (y) second, cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to such Defaulting Bank’s share of outstanding L/C Exposure Obligations (after giving effect to any partial reallocation pursuant to clause (ia) above) in accordance with the procedures set forth in Section 8.2 for so long as such L/C Exposure is Obligations are outstanding;
(iiic) if the Borrower cash collateralizes any portion of such Defaulting Bank’s share of outstanding L/C Exposure Obligations pursuant to clause (ii) abovethis Section 2.22.3, the Borrower shall not be required to pay any fees with respect to such Defaulting Bank pursuant to Section 2.5(c) with respect to such Defaulting Bank’s L/C Exposure 2.2.4 during the period such Defaulting Bank’s share of outstanding L/C Exposure Obligations is cash collateralized;
(ivd) if all or any portion the share of such Defaulting Bank’s the outstanding L/C Exposure Obligations of the non-Defaulting Bank is reallocated pursuant to clause (i) abovethis Section 2.22.3, then the Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank the Banks pursuant to Section 2.5(c)(i) with respect to such Defaulting Bank’s reallocated L/C Exposure 2.2.4 and Section 2.9 shall be payable to the non-Defaulting Banks adjusted in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocationPro Rata Shares; and
(ve) if all or any portion of such Defaulting Bank’s share of the outstanding L/C Exposure Obligations is neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.22.3, then, without prejudice to any rights or remedies of the L/C Issuer, any Issuing Bank or any other Bank the Borrower hereunder, all Letter of Credit participation fees Unused Portion Fee that otherwise would have been payable to such Defaulting Bank (solely with respect to the portion of such Defaulting Bank’s Revolving Commitment that was utilized by such outstanding L/C Obligations) and letter of credit fees payable under Section 2.5(c)(i) 2.2.4 with respect to such Defaulting Bank’s unreallocated L/C Exposure Bank shall be payable to the Issuing Banks, ratably based on the portion of Bank until such L/C Exposure attributable to Letters of Credit issued by each Issuing Bank, until and to the extent that such L/C Exposure share is reallocated and/or cash collateralized pursuant to clause (i) or (ii) above;and/or reallocated.
(d) so 2.22.4. So long as such any Bank is a Defaulting Bank, no Issuing Bank the Swing Line Lender shall not be required to issue, amend or increase fund any Letter of Credit, unless Swing Line Loan 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 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 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) 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 Issuing Bank Issuer shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are it is satisfied that the Disregarded Bank’s then outstanding L/C Exposure, related exposure will be 100% covered by the Commitments of the non-Disregarded Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower in the manner consistent accordance with Section 2.8(c2.22.3), and participating interests in any such newly issued or increased Letter of Credit or newly made Swing Line Loan shall be allocated among the non-Disregarded Defaulting Banks in a manner consistent with Section 2.8(c) 2.22.3 (and such Disregarded the Defaulting Bank shall not participate therein).
2.22.5. If any Defaulting Bank shall fail to make any payment required to be made by it pursuant to this Agreement, 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 Defaulting Bank to satisfy such Defaulting Bank’s funding 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 Defaulting Bank. In the event that the Administrative Agent, the Borrower Borrower, the L/C Bank and the Issuing Banks Swing Line Lender 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 all outstanding Swing Line Loans and L/C Exposures of the Banks Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment, Revolving Credit Commitment and on such date such Bank shall purchase at par such of the Revolving Credit Loans of the other Banks (other than Swing Line Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Credit Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting BankPro Rata Share.
Appears in 1 contract
Sources: Credit Agreement (Saia Inc)
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) Commitment Fees 2.13.1 fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a)2.3 [Commitment Fees];
(b) 2.13.2 the Commitment and Outstanding Extensions of Credit outstanding Loans of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.110.1 [Modifications, Amendments or Waivers]); provided, that this clause (bii) 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 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 Loan Documents, in each case without the consent of such Bank;
(c) 2.13.3 if any L/C Swing Loans are outstanding or any Letter of Credit Obligations exist at the time such Bank becomes a Defaulting Bank Bank, then;:
(i) 2.13.3.1 all or any part of the L/C Exposure outstanding Swing Loans and Letter of Credit Obligations of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s L/C Exposure Dollar Equivalent Revolving Facility Usage does not exceed the total of all non-Defaulting Banks’ ' Revolving Credit Commitments, and (y) no Potential Default or Event of Default has occurred and is continuing at such time;
(ii) 2.13.3.2 if the reallocation described in clause (i) Section 2.13.3.1 above cannot, or can only partially, be effected, the Borrower shall, shall within two one (1) Business Days Day following the Borrower’s receipt of written notice by the Administrative AgentAgent (x) first, prepay such outstanding Swing Loans, and (y) second, cash collateralize for the benefit of the applicable Issuing Banks only Bank the Borrower’s 's obligations corresponding to such Defaulting Bank’s L/C Exposure 's Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (i) Section 2.13.3.1 above) in accordance with a deposit account held at the procedures set forth in Section 8.2 Administrative Agent for so long as such L/C Exposure is Letter of Credit Obligations are outstanding;
(iii) 2.13.3.3 if the Borrower cash collateralizes any portion of such Defaulting Bank’s L/C Exposure 's Letter of Credit Obligations pursuant to clause (ii) Section 2.13.3.2 above, the Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c) 2.9.2 [Letter of Credit Fees] with respect to such Defaulting Bank’s L/C Exposure 's Letter of Credit Obligations during the period such Defaulting Bank’s L/C Exposure is 's Letter of Credit Obligations are cash collateralized;
(iv) 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 L/C Exposure is reallocated pursuant to clause (i) above, then the 's 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 Obligations are neither reallocated nor cash collateralized pursuant to clause (i) Section 2.13.3.1 or (ii) 2.13.3.2 above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Bank hereunder, all Letter of Credit participation fees that otherwise would have been Fees payable to such Defaulting Bank under Section 2.5(c)(i) 2.9.2 with respect to such Defaulting Bank’s unreallocated L/C Exposure 's Letter of Credit Obligations shall be payable to the Issuing Banks, ratably based on the portion of Bank (and not to such L/C Exposure attributable to Letters of Credit issued by each Issuing Defaulting Bank, ) until and to the extent that such L/C Exposure is Letter of Credit Obligations are reallocated and/or cash collateralized pursuant to clause (i) or (ii) above;
(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 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 collateralized; 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 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 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 Administrative Agent, the Borrower and the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 1 contract
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) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions of Credit of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) 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 10.111.1); 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 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 5.2 or Section 10.1 11.1 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 Loan Documents, in each case without the consent of such Bank;
(c) if any L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;
(i) all or any part of the L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, but only to the extent the sum of all non-Defaulting Banks’ 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, 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, 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 9.2 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, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 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 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 Administrative Agent, the Borrower and the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 1 contract
Sources: Credit Agreement (Centerpoint Energy Resources 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 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) Commitment Fees shall cease to accrue on the unfunded portion of with respect to the Commitment of such Defaulting Bank pursuant to Section 3.2(a);2.4.
(b) the The Commitment and Outstanding Extensions of Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.19.1); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of all Banks or each affected Bank which would increase or extend the term of the Commitment of such Defaulting Bank or each which affects such Defaulting Bank differently than other affected thereby if such Bank is an affected Bank; provided, further, that there Banks 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 Loan Documents, in each case without require the consent of such Defaulting Bank;.
(c) if If any L/C Obligations exist at the time such a Bank becomes a Defaulting Bank Bank, then;:
(i) all or any part of the such L/C Exposure of such Defaulting Bank Obligations shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks ratably in accordance with their respective Revolving Percentages, Commitments but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Extensions of Revolving Credit plus such Defaulting Bank’s L/C Exposure Exposures does not then exceed the total of all non-Defaulting Banks’ CommitmentsCommitments and (y) 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 Borrower shall, Company shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, Paying Agent cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to percentage such Defaulting Bank’s Commitment represents of the Total Commitment of the L/C Exposure Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 8.2 7.2 for so long as such L/C Exposure is Obligations are outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Bank’s L/C Exposure Obligations pursuant to clause (ii) abovethis Section 2.22(c), the Borrower Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c) 3.3 with respect to such Defaulting Bank’s portion of the L/C Exposure Obligations during the period of such Defaulting Bank’s L/C Exposure is cash collateralizedcollateralization;
(iv) if all or any portion of such Defaulting Bank’s the L/C Exposure is reallocated pursuant to clause (i) above, then the Letter Obligations 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 are reallocated pursuant to this Section 2.22(c), then the fees payable to the Banks pursuant to Section 3.3 shall be adjusted ratably in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocationtheir respective Commitments; and
(v) if all or any portion of such Defaulting Bank’s L/C Exposure is Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.22(c), then, without prejudice to any rights or remedies of any the applicable Issuing Bank or any other Bank hereunder, all Letter of Credit participation fees 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 2.5(c)(i) 3.3 with respect to such Defaulting Bank’s unreallocated L/C Exposure Obligations shall be payable to the applicable Issuing Banks, ratably based on the portion of Bank until 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 Obligations are cash collateralized pursuant to clause (i) or (ii) above;and/or reallocated.
(d) so So long as such any Bank is a Defaulting Bank, no the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Exposure, related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower Company in accordance with Section 2.8(c2.22(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 2.8(c)(i2.22(c)(i) (and such Defaulting Bank Banks shall not participate therein). If .
(e) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 2.16, but excluding amounts payable pursuant to Section 2.23) shall, in lieu of being distributed to such Defaulting Bank, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Paying Agent (i) a Bankruptcy Event or a Bail-In Action with respect first, to a Parent the payment of any amounts owing by such Defaulting Bank shall occur following to the date hereof and for so long as such event shall continue or Paying Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Bank to the Issuing Bank has a good faith belief that 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 Bank has defaulted existing or future participating interest in fulfilling its obligations to extend credit generally (such Bank referenced in clauses (i) and (ii), a “Disregarded Bank”), the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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(iv) fourth, to the extent funding of any Loan in respect of which such 100% coverage is not achievedDefaulting 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 which will be provided for future funding obligations of the Defaulting Bank in respect of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the 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 Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, (vii) seventh, 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 Borrower in the manner consistent Company against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided, with Section 2.8(crespect to this clause (viii), and participating interests that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of any newly issued or increased Letter drafts paid by an Issuing Bank under any Letters of Credit which a Defaulting Bank has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.3 are satisfied, such payment shall be allocated among applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Disregarded Defaulting Banks in a manner consistent with Section 2.8(c) (and such Disregarded Bank shall not participate therein)pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank. In the event that the Administrative Paying Agent, the Borrower Issuing Bank and the Issuing Banks Company each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank or upon receipt by the Paying Agent of the confirmation referred to in clause (c) of the definition of “Defaulting Bank”, as applicable, then the L/C Exposures of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment, and on such date such Bank shall purchase at par such portion of the Revolving Loans of the other Banks as the Administrative Paying Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans ratably in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting BankCommitment.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Southwest Airlines Co)
Defaulting Banks. (a) 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:
(ai) Commitment Fees facility fees shall cease to accrue accrue, or to be payable by the Borrower, on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a)2.09(a) for the account of such Defaulting Bank or otherwise;
(bii) 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 and Outstanding Extensions of or Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.19.05); provided, however, that this clause (biii) 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 if (and in circumstances where the consent of “all Banks” is required, such Bank is an affected Defaulting Bank; provided, further, that there ’s vote shall not be any amendment, modification included except (A) such Defaulting Bank’s Commitment may not be increased or waiver extended without its consent and (iB) of any provision of Section 4.2 or Section 10.1 in a manner that would alter the pro rata sharing of payments required therebyprincipal amount of, or (ii) causing interest or fees payable on, Loans or L/C Borrowings may not be reduced or excused or the reduction scheduled date of the percentage specified in the definition of Majority Banks, or (iii) causing the consent payment may not be postponed as to the assignment or transfer by the Borrower of any of its respective rights and obligations under this Agreement and the other Loan Documents, in each case such Defaulting Bank without the consent of such Defaulting Bank;’s consent); and
(civ) if any L/C Obligations exist exists at the time such Bank becomes a Defaulting Bank then;:
(iA) 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 Exposure of such Defaulting Bank Obligations shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, Pro Rata Shares but only to the extent the sum aggregate principal amount of Revolving Loans of all non-Defaulting Banks’ Outstanding Extensions of Credit Bank’s plus such Defaulting Bank’s Pro Rata Share of the Outstanding Amount of all L/C Exposure does Obligations do not exceed the total of all non-Defaulting Banks’ Commitments;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, the Borrower shall, shall within two one Domestic Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, cash collateralize Agent Cash Collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to Bank such Defaulting Bank’s Pro Rata Share of the Outstanding Amount of all L/C Exposure Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 8.2 2.20(e)(i) for so long as such L/C Exposure is Obligations are outstanding;
(iiiC) if the Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Bank’s L/C Exposure Obligations pursuant to clause (iiB) above, the Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c2.09(c) with respect to such Defaulting Bank’s L/C Exposure Obligations during the period such Defaulting Bank’s L/C Exposure is cash collateralizedObligations are Cash Collateralized;
(ivD) 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 Exposure is Obligations are neither reallocated nor Cash Collateralized 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 (iA) or (iiB) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Bank hereunder, all Letter of Credit participation 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 2.5(c)(i2.09(c) with respect to such Defaulting Bank’s unreallocated L/C Exposure Obligations 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, Bank until and to the extent that such L/C Exposure is Obligations are reallocated and/or cash collateralized pursuant to clause (i) or (ii) above;Cash Collateralized; and
(db) so So long as such any Bank is a Defaulting Bank, no the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are it is satisfied that the Defaulting Bank’s 's related exposure and its then outstanding L/C Exposure, Advance will be 100% covered in accordance with the terms of this Agreement by the Commitments of the non-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower in accordance with Section 2.8(c2.19(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 2.8(c)(i2.19(a)(iv)(A) (and such Defaulting Bank shall not participate therein). 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 Administrative Agent, the Borrower Borrower, and the Issuing Banks Bank each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures Obligations of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment, Commitment and on such date such Bank shall purchase at par such of the Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights Pro Rata Share.
(c) At the Borrower’s option, the Borrower may elect to terminate the Commitment of any Defaulting Bank upon notice to such Defaulting Bank and remedies againstthe Administrative Agent (irrespective of whether such Defaulting Bank holds any outstanding Loans) and 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 with respect tosuch Loans are not assigned pursuant to Section 2.18 or otherwise, a 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 Commitment under this Section 2.8 are in addition to2.19, the Borrower shall (x) to the extent applicable after giving effect to Section 2.19(a)(iv) and cumulative 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 Letters of Credit, (y) subject to Section 2.19(a), pay or cause to be paid all accrued facility fees or Letter of Credit Fees payable to such Bank and not in limitation of, all other rights amounts due and remedies that payable to such Bank hereunder and (z) if such Bank is an Issuing Bank, the Borrower shall pay to the Administrative Agent and each for deposit an amount equal to the available amount of all Letters of Credit issued by such Issuing Bank, each Issuing and upon such payments, the obligations of such Bank or the Borrower may at any time have against, or hereunder with respect toto such unused Commitment which have been terminated shall, such Defaulting Bankby the provisions hereof, be released and discharged.
Appears in 1 contract
Sources: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document 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) Commitment Fees shall cease to accrue on the unfunded portion of neither the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) nor the Commitment and Outstanding Extensions of Credit Loans of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.19.05); providedprovided that any waiver, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks which affects such Defaulting Bank or each Bank differently than other affected thereby if Banks shall require the consent of such Bank is an affected Defaulting Bank; provided, further, that there shall not be any amendmentno waiver, amendment or modification or waiver of the type described in clauses (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 therebya)(i), or (ii) causing the reduction of the percentage specified in the definition of Majority Banks, or (iii) causing of Section 9.05 may be made without the written consent of any Defaulting Bank affected thereby;
(b) the Company may, at its sole expense, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the assignment restrictions contained in Section 9.06, with the Company or transfer by the Borrower of any replacement Bank paying the processing and recording fee), all of its respective interests, rights and obligations under this Agreement and to an Assignee that shall assume such obligations (which Assignee may be another Bank, if a Bank accepts such assignment); provided that (i) the other Loan Documents, in each case without Company shall have received the prior written consent of the Administrative Agent to such Bankassignment (to the extent such consent would otherwise be required pursuant to Section 9.06), which consent shall not unreasonably be withheld, delayed or conditioned, and (ii) such Defaulting Bank shall have received payment of an amount equal to the outstanding 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 principal and accrued interest and fees) or the Company;
(c) if any L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;
(i) all or any part of the L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, but only to the extent the sum of all non-Defaulting Banks’ 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, 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, 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[reserved];
(d) so long as such notwithstanding any contrary provision in this Agreement, the Company may (i) prepay, without penalty or premium, the Loans made by a Defaulting Bank is and (ii) terminate the unused amount of the Commitment of a Defaulting Bank, no Issuing Bank shall in each case, (x) without pro rata prepayment of Loans of other Banks or pro rata termination of Commitments of other Banks and (y) upon not less than two Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof), it being understood that such prepayment and termination will not be required deemed to issue, amend be a waiver or increase release of any Letter of Credit, unless claim the Issuing Banks are satisfied that Company or the Administrative Agent may have against such Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered by ; and
(e) nothing in this Section shall affect any rights or remedies the Commitments of the non-Company may have against any 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 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 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 and on the date that the Administrative Agent, the Borrower Agent and the Issuing Banks Company each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights Commitment and remedies against, and with respect to, such Bank shall no longer be a Defaulting Bank under this Bank. Each party hereto agrees that (a) an assignment required pursuant to Section 2.8 are in addition to2.16(b) may be effected pursuant to an Assignment and Assumption Agreement executed by the Company, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each the assignee and (b) the Bank required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Bank, each Issuing Bank provided, further, that any such documents shall be without recourse to or warranty by the Borrower may at any time have against, or with respect to, such Defaulting Bankparties thereto.
Appears in 1 contract
Sources: 364 Day Term Loan Credit Agreement (Rockwell Automation, Inc)
Defaulting Banks. (a) 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:
(ai) Commitment Fees facility fees shall cease to accrue accrue, or to be payable by the Borrower, on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a)2.09(a) for the account of such Defaulting Bank or otherwise;
(bii) 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 and Outstanding Extensions of or Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.19.05); provided, however, that this clause (biii) 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 if (and in circumstances where the consent of “all Banks” is required, such Bank is an affected Defaulting Bank; provided, further, that there ’s vote shall not be any amendment, modification included except (A) such Defaulting Bank’s Commitment may not be increased or waiver extended without its consent and (iB) of any provision of Section 4.2 or Section 10.1 in a manner that would alter the pro rata sharing of payments required therebyprincipal amount of, or (ii) causing interest or fees payable on, Loans or L/C Borrowings may not be reduced or excused or the reduction scheduled date of the percentage specified in the definition of Majority Banks, or (iii) causing the consent payment may not be postponed as to the assignment or transfer by the Borrower of any of its respective rights and obligations under this Agreement and the other Loan Documents, in each case such Defaulting Bank without the consent of such Defaulting Bank;’s consent); and
(civ) if any L/C Obligations exist ObligationsObligation exists at the time such Bank becomes a Defaulting Bank then;:
(iA) 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 Exposure of such Defaulting Bank Obligations shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, Pro Rata Shares but only to the extent the sum aggregate principal amount of Revolving Loans of all non-Defaulting Banks’ Outstanding Extensions of Credit Bank’s plus such Defaulting Bank’s Pro Rata Share of the Outstanding Amount of all L/C Exposure does Obligations do not exceed the total of all non-non- Defaulting Banks’ Commitments;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, the Borrower shallshall within one Domestic Business Day following notice Subsidiary’s assets, within two Business Days following 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 receipt 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 written notice the aggregate 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 Administrative AgentBorrower or any Subsidiary) which are being contested in good faith by appropriate proceedings, cash collateralize for 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 benefit Borrower to secure Guarantees by the Borrower of Indebtedness, the interest on which is excludable from the gross income of the applicable Issuing Banks only 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 Member which is a state or political subdivision thereof or (y) of a state or political subdivision thereof incurred to benefit a Member for one of the purposes 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 obligations corresponding to such Defaulting Bank’s L/C Exposure unsecured creditors than the borrowings under any Indenture (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 it being understood that the Borrower cash collateralizes any portion can not pledge such assets to an extent greater than 150% of the aggregate principal amount 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 Indebtedness); provided 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 Liens incurred 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 reliance 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, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 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 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) 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 Issuing Bank (vii) and (viii) of this Section 5.10 shall not be required to issue, amend or increase any Letter of Credit, unless 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 secure amounts exceeding $7,500,000,000 in the manner consistent with Section 2.8(c), and participating interests in 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 Administrative Agent, the Borrower and the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may aggregateLien Exception Amount at any one time have against, or with respect to, such Defaulting Bankoutstanding.
Appears in 1 contract
Sources: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, if any Bank becomes a one or more Revolving Banks become Defaulting BankBanks, then the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(ai) Commitment Fees no commitment fee shall cease to accrue on the unfunded portion unused amount of the any Revolving Commitment of such any Defaulting Bank pursuant to Section 3.2(a2.8(a);
(bii) the Commitment Revolving Commitments and Outstanding Extensions Revolving Exposures of Credit of such each Defaulting Bank shall not be included disregarded in determining whether all the Required Revolving Banks, Required Banks (or each Bank) or the Majority any other requisite Banks shall have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendmentwaiver, waiver amendment or other modification pursuant to Section 10.19.5); providedprovided that any waiver, that amendment, or other modification that, disregarding the effect of this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendmentii), waiver or other modification requiring requires the consent of such Bank or each Bank directly affected thereby if such pursuant to clause (1)(a), (1)(b), (1)(c) or (1)(d) of Section 9.5 shall continue to require the consent of each Defaulting Bank is an directly affected Bankthereby in accordance with the terms hereof; provided, further, that there shall not be any amendmentwaiver, amendment or other modification of this Section 2.20(a)(ii) or waiver clause (i1)(a), (1)(b), (1)(c) or (1)(d) of Section 9.5 at any provision of Section 4.2 or Section 10.1 in time that 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 Loan Documents, in each case without Bank is a Defaulting Bank shall require the consent of such BankDefaulting Bank if such Defaulting Bank would be directly adversely affected thereby;
(c1) in the case of a Defaulting Bank that is a Dollar Revolving Bank, if any L/C Obligations exist Dollar LC Exposure or Swingline Exposure exists at the time such Dollar Revolving Bank becomes a Defaulting Bank or (2) in the case of a Defaulting Bank that is a Multi-Currency Revolving Bank, if any Multi-Currency LC Exposure exists at the time such Multi-Currency Bank becomes a Defaulting Bank (each Swingline Loan to which such Swingline Exposure is attributable being referred to as a “Reallocated Swingline Loan” and each Letter of Credit to which such LC Exposure is attributable being referred to as a “Reallocated Letter of Credit”), then:
(A) subject to clause (B) below, the participation of each Non-Defaulting Bank of such Class in each Reallocated Swingline Loan (if applicable) or Reallocated Letter of Credit of such Class shall be adjusted to be determined under Section 2.18(d) or 2.23 on the basis of such Revolving Bank’s Adjusted Dollar Applicable Percentage or Adjusted Multi-Currency Applicable Percentage, as the case may be (and all references in Section 2.18 or 2.23 to “Dollar Applicable Percentage” or “Multi-Currency Applicable Percentage” shall be deemed to be references to “Adjusted Dollar Applicable Percentage” or “Adjusted Multi-Currency Applicable Percentage”, as the case may be);
(iB) all or notwithstanding the foregoing:
(1) if any part of the L/C Exposure of such Revolving Bank that becomes a Defaulting Bank shall be reallocated the Swingline Bank or an Issuing Bank or an Affiliate thereof, no adjustment shall be made pursuant to clause (effective A) above with respect to participations in any Swingline Loan made by the Swingline Bank or any Letter of Credit issued by such Issuing Bank, as the case may be;
(2) if all the Defaulting Banks’ Applicable Percentage of the LC Exposure of any Class attributable to the Reallocated Letters of Credit of such Class (the “Defaulting Bank LC Exposure”) and, in the case of Dollar Revolving Banks, the Swingline Exposure attributable to the Reallocated Swingline Loans (the “Defaulting Bank Swingline Exposure”) collectively exceed the unused portion of the Revolving Commitments of the Non-Defaulting Banks of such Class as of the date time the adjustments are to be made pursuant to clause (A) above (any such Bank becomes a Defaulting Bank) among unused portion being referred to as the non“Maximum Incremental Participation Amount”), then the incremental amount of participations in Letters of Credit of such Class and, in the case of Dollar Revolving Banks, Swingline Loans acquired by the Non-Defaulting Banks in accordance under clause (A) above (the “Incremental Participations”) shall not exceed at any time the Maximum Incremental Participation Amount with their respective Revolving Percentages, but respect to such Class;
(3) adjustments under Section 2.20(a)(iii)(A) and (B) above shall only be made to the extent that, after giving effect to such adjustments, the sum Revolving Exposure of all nonany Non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s L/C Exposure does Bank with respect to any Class shall not exceed its Revolving Commitment with respect to such Class; and
(4) no adjustment shall be made under Section 2.20(a)(iii)(A) or (B) above if, at the total time such adjustment is made, an Event of all non-Defaulting Banks’ CommitmentsDefault has occurred and is continuing;
(iiC) if the reallocation described Defaulting Bank LC Exposure with respect to any Class and Defaulting Bank Swingline Exposure (in clause (ithe case of Dollar Revolving Banks) above cannotcollectively exceed the Maximum Incremental Participation Amount with respect to such Class, then the applicable Borrower or can only partially, be effected, the applicable Additional Borrower shall, within two five Domestic Business Days following the Borrower’s after receipt of written notice by to that effect from the Administrative Agent, cash collateralize for the benefit Reallocated Letters of Credit of such Class and, in the case of Dollar Revolving Banks, prepay the Reallocated Swingline Loans (in a manner and under documentation reasonably satisfactory to the Administrative Agent) in an aggregate amount equal to the excess, if any, of the Defaulting Bank LC Exposure of such Class and, in the case of Dollar Revolving Banks, Defaulting Bank Swingline Exposure over the Maximum Incremental Participation Amount of such Class or, if agreed to by the applicable Issuing Banks only Bank and/or Swingline Bank, enter into other arrangements with respect to the Reallocated Letters of Credit of such Class or Reallocated Swingline Loans on terms mutually agreed between such Issuing Bank or the Swingline Bank, on the one hand, and the applicable Borrower or applicable Additional Borrower’s obligations corresponding to such Defaulting Bank’s L/C Exposure , on the other hand;
(after giving effect to D) if any partial reallocation Reallocated Letter of Credit shall have been cash collateralized by the applicable Borrower or applicable Additional Borrower 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 (iiC) above, then (x) the applicable Borrower or applicable Additional Borrower shall not be required to pay any letter of credit participation fees to such Defaulting Bank pursuant to Section 2.5(c2.8(b) with respect to the portion of such Reallocated Letter of Credit that is so cash collateralized and (y) to the extent any letter of credit participation fees are not required to be paid by reason of clause (x) above, the reduction in the amount of such fees shall be allocated to the Defaulting Bank’s L/C Exposure during the period such Defaulting Bank’s L/C Exposure is cash collateralizedBanks;
(ivE) if all or any portion of such Defaulting Bank’s L/C Exposure is reallocated an adjustment shall have been made pursuant to clause (iA) aboveabove to the participations of the Non-Defaulting Banks in Reallocated Letters of Credit of any Class, then the Letter letter of Credit credit participation fees that would otherwise would have been payable to such the Revolving Banks that are Defaulting Bank Banks pursuant to Section 2.5(c)(i2.8(b) with respect to the portion of such Defaulting Bank’s reallocated L/C Exposure Reallocated Letters of Credit of such Class equal to the Incremental Participations therein shall instead accrue for the accounts of, and be payable to to, the nonRevolving Banks of such Class that are Non-Defaulting Banks in accordance with such nontheir Adjusted Dollar Applicable Percentages or Adjusted Multi-Defaulting Banks’ Revolving Percentages after giving effect to such reallocation; andCurrency Applicable Percentages, as the case may be;
(vF) if all or the Defaulting Bank LC Exposure with respect to any Class at any time shall exceed the sum of the Incremental Participations in respect of Letters of Credit of such Class at such time and the portion of the Reallocated Letters of Credit of such Defaulting Bank’s L/C Exposure is neither reallocated nor Class cash collateralized at such time pursuant to clause (i) or (iiC) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Non-Defaulting Bank hereunder, all letter of credit participation fees payable to the Revolving Banks of such Class that are Defaulting Banks under Section 2.8(b) with respect to the portion of the Defaulting Bank LC Exposure of such Class equal to such excess shall instead accrue for the account of, and be payable to, the applicable Issuing Bank that shall have issued the Reallocated Letters of Credit of such Class; and
(G) the Revolving Exposure of each Non-Defaulting Bank with respect to any Class shall be determined after giving effect to the Incremental Participations acquired by such Revolving Bank with respect to such Class under the foregoing clauses of this clause (iii);
(iv) in the event any (x) Letter of Credit shall be issued or amended to increase the amount thereof or (y) in the case of Dollar Revolving Banks, Swingline Loan shall be made, (A) the participations of the Non-Defaulting Banks of such Class therein shall be determined in the manner set forth in clause (iii)(A) above, as if such Letter of Credit of such Class or Swingline Loan shall have been a Reallocated Letter of Credit of such Class or a Reallocated Swingline Loan, as the case may be, and (B) letter of credit participation fees that would otherwise would have been payable to the Revolving Banks of such Class that are Defaulting Bank under Banks pursuant to Section 2.5(c)(i2.8(b) with in respect to of any such Defaulting Bank’s unreallocated L/C Exposure Letter of Credit shall be payable subject to Section 2.20(a)(iii)(E) above; provided, however, that, notwithstanding anything 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 Bankcontrary set forth herein, no Issuing Bank of such Class or Swingline Bank shall be required to issue, amend extend, renew or increase the amount of any Letter of CreditCredit of such Class or make any Swingline Loan, as applicable, unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Banks’ Dollar Applicable Percentage or Multi-Currency Applicable Percentage, as applicable, of the LC Exposure with respect to such Class or Swingline Exposure, as applicable, attributable to such Letter of Credit or Swingline Loan, as applicable, will be 100% entirely covered by the Commitments participations therein of the nonNon-Defaulting Banks and/or cash collateral or other arrangements satisfactory to such Issuing Bank or Swingline Bank provided by the applicable Borrower or applicable Additional Borrower (in a manner and under documentation satisfactory to such Issuing Bank or Swingline Bank, as applicable); and
(v) any amount payable to or for the account of any Defaulting Bank in its capacity as a Bank hereunder (whether on account of principal, interest, fees or otherwise, and including any amounts payable to such Defaulting Bank pursuant to Sections 2.10 and 2.11, but excluding any amounts payable to such Defaulting Bank pursuant to Sections 2.13, 2.15, 2.17, 8.3 and 9.3) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, (A) be applied, at such time or times as may be determined by the Administrative Agent, (1) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, (2) second to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to each Issuing Bank and Swingline Bank in respect of such Defaulting Bank’s participations in Letters of Credit and Swingline Loans (and to the extent any such 100% coverage is not achievedamounts shall have been paid by Non-Defaulting Banks as a result of adjustments pursuant to clause (iii) above, by to reimburse such Non-Defaulting Banks for such amounts), (3) third, to cash collateralize participation obligations of such Defaulting Bank in respect of outstanding Letters of Credit (with the concurrent release of an equivalent amount any cash collateral which will be or other collateral security, if any, provided by the applicable Borrower pursuant to this Section) and prepay Swingline Loans on a pro rata basis and (4) fourth, to the funding of such Defaulting Bank’s Applicable Percentage of any Revolving Borrowing in accordance with Section 2.8(c), and participating interests in any newly issued or increased Letter respect of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.8(c)(i) (and which such Defaulting Bank shall have failed to fund such share as required hereunder, (B) to the extent not participate therein). 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 applied as aforesaid, be held, if so long as such event shall continue or (ii) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, will be 100% covered determined by the Commitments Administrative Agent, as cash collateral for funding obligations of such Defaulting Bank in respect of future Loans hereunder, (C) to the non-Disregarded Banks andextent not applied or held as aforesaid, be applied, pro rata, to the payment of any amounts owing to any Borrower or the Non-Defaulting Banks as a result of any judgment of a court of competent jurisdiction obtained by any Borrower or any Non-Defaulting Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations hereunder and (D) to the extent not applied or held as aforesaid, be distributed to such 100% coverage is not achieved, Defaulting Bank or as otherwise directed 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 issued or increased Letter a court of Credit shall be allocated among the non-Disregarded Banks in a manner consistent with Section 2.8(ccompetent jurisdiction.
(b) (and such Disregarded Bank shall not participate therein). In the event that the Administrative Agent, the Borrower Issuing Banks of such Class, the Swingline Bank (solely in the case of Defaulting Banks that are Dollar Revolving Banks) and the Issuing Banks each agrees Borrowers shall have agreed that a Revolving Bank that is a Defaulting Bank has adequately remedied all matters that caused such Revolving Bank to be become a Defaulting Bank, then (i) such Revolving Bank shall cease to be a Defaulting Bank for all purposes hereof, (ii) the L/C Exposures obligations of the Revolving Banks to purchase participations in Letters of Credit under Section 2.18(d) and Swingline Loans under Section 2.23 shall be readjusted to reflect be determined on the inclusion basis of such Bank’s CommitmentRevolving Banks’ Dollar Applicable Percentages or Multi-Currency Applicable Percentages, as the case may be, and on (iii) such date such Revolving Bank shall purchase at par such of the Revolving Loans of the other Revolving Banks as the Administrative Agent shall determine may to be necessary in order for such Bank to hold such the Revolving Loans to be held by the Revolving Banks in accordance with their Dollar Applicable Percentages or Multi-Currency Applicable Percentages, as the case may be.
(c) No Revolving Commitment of any Revolving Bank shall be increased or otherwise affected and, except as otherwise expressly provided in this Section, performance by any Borrower or any Additional Borrower of its Revolving Percentageobligations hereunder and under the other Loan Documents shall not be excused or otherwise modified as a result of the operation of this Section. The rights and remedies against, and with respect to, against a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all to other rights and remedies that any Borrower, any Additional Borrower, the Administrative Agent and each BankAgent, the Issuing Banks, the Swingline Bank or any Non-Defaulting Bank may have against such Defaulting Bank (and, for the avoidance of doubt, each Issuing Non-Defaulting Bank or shall have a claim against any Defaulting Bank for any losses it may suffer as a result of the Borrower may at any time have against, or with respect to, such Defaulting Bankoperation of this Section).
Appears in 1 contract
Sources: Credit Agreement (Allegion PLC)
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document 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) Commitment Fees shall cease to accrue on the unfunded portion of neither the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) nor the Commitment and Outstanding Extensions of Credit Loans of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.19.05); providedprovided that any waiver, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks which affects such Defaulting Bank or each Bank differently than other affected thereby if Banks shall require the consent of such Bank is an affected Defaulting Bank; providedprovided further that no waiver, further, that there shall not be any amendment, amendment or modification or waiver of the type described in clause (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 of Section 9.05 may be made without the written consent of any Defaulting Bank affected thereby;
(b) the Company may, at its sole expense, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the assignment restrictions contained in Section 9.06, with the Company or transfer by the Borrower of any replacement Bank paying the processing and recording fee), all of its respective interests, rights and obligations under this Agreement and to an Assignee that shall assume such obligations (which Assignee may be another Bank, if a Bank accepts such assignment); provided that (i) the other Loan Documents, in each case without Company shall have received the prior written consent of the Administrative Agent to such Bankassignment (to the extent such consent would otherwise be required pursuant to Section 9.06), which consent shall not unreasonably be withheld, and (ii) such Defaulting Bank shall have received payment of an amount equal to the outstanding 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 principal and accrued interest and fees) or the Company;
(c) if any L/C Obligations exist at facility fees shall cease to accrue on the time such Bank becomes a Defaulting Bank then;
(i) all or any part unused portion of the L/C Exposure Commitment of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, but only to the extent the sum of all non-Defaulting Banks’ 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, 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, 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) above2.08;
(d) so long as such notwithstanding any contrary provision in this Agreement, the Company may (i) prepay, without penalty or premium, the Loans made by a Defaulting Bank is and (ii) terminate the unused amount of the Commitment of a Defaulting Bank, no Issuing Bank shall in each case, (x) without pro rata prepayment of Loans of other Banks or pro rata termination of Commitments of other Banks and (y) upon not less than two Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof), it being understood that such prepayment and termination will not be required deemed to issue, amend be a waiver or increase release of any Letter of Credit, unless claim the Issuing Banks are satisfied that Company or the Administrative Agent may have against such Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered ; and
(e) nothing in this Section shall affect any rights or remedies the Company may have against any Defaulting Bank. The Administrative Agent shall provide to any Bank determined 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 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 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 Administrative Agent, the Borrower and the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank Agent to be a Defaulting Bank, then the L/C Exposures of the Banks shall be readjusted to reflect the inclusion Bank notice of such Bank’s Commitment, determination (and on shall provide a copy of such date such Bank shall purchase at par such of notice to the Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting BankCompany).
Appears in 1 contract
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) Commitment Ticking Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a3.2(b);; and
(b) the Commitment and Outstanding Extensions of Credit of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) 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 10.1); 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 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 Loan Documents, in each case without the consent of such Bank;
(c) if any L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;
(i) all or any part of the L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, but only to the extent the sum of all non-Defaulting Banks’ 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, 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, 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, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 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 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 Administrative Agent, the Borrower and the Issuing Banks each agrees Administrative Agent agree in writing in their sole discretion that a Defaulting Bank has adequately remedied all matters that caused such Bank should no longer be deemed to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may will so notify the parties hereto, whereupon that Bank will cease to be necessary in order for such a Defaulting Bank; provided that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to hold such Revolving Loans in accordance with its Revolving PercentageBank will constitute a waiver or release of any claim of any party hereunder arising from that Bank’s having been a Defaulting Bank. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 2.4 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 1 contract
Sources: Term Loan Agreement (Centerpoint Energy Houston Electric LLC)
Defaulting Banks. Notwithstanding anything contained in Sections 2.8, 2.9 or any other 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) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions then: all Letters of Credit Outstanding and Swing Loans outstanding at such time, and all Letters of such Defaulting Bank shall not be included in determining whether all Banks (Credit issued or each Bank) 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 10.1); provided, that this clause (b) shall not apply to the vote of Swing Loans made while there exists 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 Loan Documents, in each case without the consent of such Bank;
(c) if any L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;
(i) all or any part of the L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving PercentagesRatable 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’ Outstanding Extensions Revolving Credit Loans then outstanding plus the sum of Credit plus such non-Defaulting Bank’s L/C Exposure Banks’ Ratable Share of the Dollar Equivalent NAI-▇▇▇▇▇▇▇▇▇▇v6 Non-Loan Revolving Facility Usage at such time does not exceed the total of all non-Defaulting Banks’ Commitments;
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) if such Bank’s Revolving Credit Loans then outstanding plus such Bank’s Ratable Share of the Dollar Equivalent Non-Loan Revolving Facility Usage. If the reallocation described in clause (i) above the preceding sentence cannot, or can only partially, be effected, the Borrower shall, Borrowers shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to (1) first, prepay outstanding Swing Loans and (2) second, Cash Collateralize such Defaulting Bank’s L/C Exposure portion of Letters of Credit Outstanding (in each case, 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 immediately preceding sentence). To the extent such L/C Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion Letters of such Defaulting Bank’s L/C Exposure Credit Outstanding and Swing Loans are reallocated pursuant to clause (ii) abovethis Section 2.14, then the Borrower shall not be required fees payable to pay any fees to such Defaulting Bank the Banks pursuant to Section 2.5(c2.8.2 (but not Section 2.3) 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 adjusted in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocation; and
(v) if all or any Ratable Shares. To the extent a portion of the Defaulting Bank’s Letters of Credit outstanding are Cash Collateralized pursuant to clause (2) above, the Borrowers shall not be obligated to pay any fees to or for the account of such Defaulting Bank pursuant to Section 2.8.2 with respect to such Defaulting Bank’s L/C Exposure is neither Letters of Credit Outstanding during the period such Defaulting Bank’s Letters of Credit Outstanding are Cash Collateralized. To the extent such Letters of Credit Outstanding are not reallocated nor cash collateralized pursuant to clause (i) this Section 2.14, or (ii) abovethe Defaulting Bank’s Ratable Share of Letters of Credit Outstanding have not been Cash Collateralized, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Bank hereunder, all Letter of Credit participation fees Commitment Fees that otherwise would have been payable to such Defaulting Bank under Section 2.5(c)(i(solely with respect to the portion of such Defaulting Bank’s Commitment that was utilized by such Letters of Credit Outstanding) and Letter of Credit Fees with respect to such Defaulting Bank’s unreallocated L/C Exposure Ratable Share of the Letters of Credit Outstanding shall be payable to the Issuing BanksBank. Subject to Section 11.23, ratably based on the portion nothing contained in this Section or elsewhere in this Agreement and no reallocation 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, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are satisfied that the Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered by the Commitments Ratable Share 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 issued or increased Letter of Credit obligation hereunder shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.8(c)(i) (and relieve such Defaulting Bank shall not participate therein). If (i) a Bankruptcy Event or a Bail-In Action with respect of its obligation to a Parent fund any portion of any amount owed by such Defaulting Bank shall occur following the date hereof and for so long as such event shall continue or (ii) the Issuing Bank has a good faith belief that any Bank has defaulted in fulfilling its obligations to extend credit generally (such Bank referenced in clauses (i) and (ii), a “Disregarded Bank”), the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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)hereunder. In the event that the Administrative Agent, the Borrower Borrower, and the Issuing Banks each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures Letters of Credit Outstanding and the Banks Swing Loans outstanding shall be readjusted to reflect the inclusion of such Bank’s Commitment, Revolving Credit Commitment and on such date date, such Bank shall purchase at par such of the Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting BankRatable Share.
Appears in 1 contract
Sources: Credit Agreement (Triumph Group Inc)
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 Administrative Agent shall deliver written notice to such effect, upon the Administrative 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) Commitment Fees shall cease to accrue on the unfunded portion of with respect to the Commitment of such Defaulting Bank pursuant to Section 3.2(a);2.4.
(b) the The Commitment and Outstanding Extensions of Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.19.1); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of all Banks or each affected Bank which would increase or extend the term of the Commitment of such Defaulting Bank or each which affects such Defaulting Bank differently than other affected thereby if such Bank is an affected Bank; provided, further, that there Banks 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 Loan Documents, in each case without require the consent of such Defaulting Bank;.
(c) if If any L/C Obligations exist at the time such a Bank becomes a Defaulting Bank Bank, then;:
(i) all or any part of the such L/C Exposure of such Defaulting Bank Obligations shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks ratably in accordance with their respective Revolving Percentages, Commitments but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Extensions of Revolving Credit plus such Defaulting Bank’s L/C Exposure Exposures does not then exceed the total of all non-Defaulting Banks’ CommitmentsCommitments and (y) 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 Borrower shall, Company shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, Agent cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to percentage such Defaulting Bank’s Commitment represents of the Total Commitment of the L/C Exposure Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 8.2 7.2 for so long as such L/C Exposure is Obligations are outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Bank’s L/C Exposure Obligations pursuant to clause (ii) abovethis Section 2.22(c), the Borrower Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c) 3.3 with respect to such Defaulting Bank’s portion of the L/C Exposure Obligations during the period of such Defaulting Bank’s L/C Exposure is cash collateralizedcollateralization;
(iv) if all or any portion of such Defaulting Bank’s the L/C Exposure is reallocated pursuant to clause (i) above, then the Letter Obligations 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 are reallocated pursuant to this Section 2.22(c), then the fees payable to the Banks pursuant to Section 3.3 shall be adjusted ratably in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocationtheir respective Commitments; and
(v) if all or any portion of such Defaulting Bank’s L/C Exposure is Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.22(c), then, without prejudice to any rights or remedies of any the applicable Issuing Bank or any other Bank hereunder, all Letter of Credit participation fees 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 2.5(c)(i) 3.3 with respect to such Defaulting Bank’s unreallocated L/C Exposure Obligations shall be payable to the applicable Issuing Banks, ratably based on the portion of Bank until 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 Obligations are cash collateralized pursuant to clause (i) or (ii) above;and/or reallocated.
(d) so So long as such any Bank is a Defaulting Bank, no the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Exposure, related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower Company in accordance with Section 2.8(c2.22(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 2.8(c)(i2.22(c)(i) (and such Defaulting Bank Banks shall not participate therein). If .
(e) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 2.16, but excluding amounts payable pursuant to Section 2.23) shall, in lieu of being distributed to such Defaulting Bank, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) a Bankruptcy Event or a Bail-In Action with respect first, to a Parent the payment of any amounts owing by such Defaulting Bank shall occur following to the date hereof and for so long as such event shall continue or Administrative Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Bank to the Issuing Bank has a good faith belief that hereunder, (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 Bank has defaulted existing or future participating interest in fulfilling its obligations to extend credit generally (such Bank referenced in clauses (i) and (ii), a “Disregarded Bank”), the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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(iv) fourth, to the extent funding of any Loan in respect of which such 100% coverage is not achievedDefaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the Administrative Agent and the Company, held in such account as cash collateral which will be provided for future funding obligations of the Defaulting Bank in respect of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the 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 Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, (vii) seventh, 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 Borrower in the manner consistent Company against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided, with Section 2.8(crespect to this clause (viii), and participating interests that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of any newly issued or increased Letter drafts paid by an Issuing Bank under any Letters of Credit which a Defaulting Bank has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.3 are satisfied, such payment shall be allocated among applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Disregarded Defaulting Banks in a manner consistent with Section 2.8(c) (and such Disregarded Bank shall not participate therein)pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank. In the event that the Administrative Agent, the Borrower Issuing Bank and the Issuing Banks Company each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank or upon receipt by the Administrative Agent of the confirmation referred to in clause (c) of the definition of “Defaulting Bank”, as applicable, then the L/C Exposures of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment, and on such date such Bank shall purchase at par such portion of the Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans ratably in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting BankCommitment.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Southwest Airlines Co)
Defaulting Banks. (a) Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, if any Bank becomes a one or more Revolving Banks become Defaulting BankBanks, then the following provisions shall apply for so long as any such Bank is a Defaulting Bank:
(ai) Commitment Fees no commitment fee shall cease to accrue on the unfunded portion unused amount of the any Revolving Commitment of such any Defaulting Bank pursuant to Section 3.2(a2.8(a);
(bii) the Commitment Revolving Commitments and Outstanding Extensions Revolving Exposures of Credit of such each Defaulting Bank shall not be included disregarded in determining whether all the Required Revolving Banks, Required Banks (or each Bank) or the Majority any other requisite Banks shall have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendmentwaiver, waiver amendment or other modification pursuant to Section 10.19.5); providedprovided that any waiver, that amendment, or other modification that, disregarding the effect of this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendmentii), waiver or other modification requiring requires the consent of such Bank or each Bank directly affected thereby if such pursuant to clause (1)(a), (1)(b), (1)(c) or (1)(d) of Section 9.5 shall continue to require the consent of each Defaulting Bank is an directly affected Bankthereby in accordance with the terms hereof; provided, further, that there shall not be any amendmentwaiver, amendment or other modification of this Section 2.20(a)(ii) or waiver clause (i1)(a), (1)(b), (1)(c) or (1)(d) of Section 9.5 at any provision of Section 4.2 or Section 10.1 in time that 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 Loan Documents, in each case without Bank is a Defaulting Bank shall require the consent of such BankDefaulting Bank if such Defaulting Bank would be directly adversely affected thereby;
(ciii) (1) if any L/C Obligations exist Dollar LC Exposure, Multi-Currency LC Exposure or Swingline Exposure exists at the time such a Revolving Bank becomes a Defaulting Bank (each Swingline Loan to which such Swingline Exposure is attributable being referred to as a “Reallocated Swingline Loan” and each Letter of Credit to which such LC Exposure is attributable being referred to as a “Reallocated Letter of Credit”), then:
(A) subject to clause (B) below, the participation of each Non-Defaulting Bank of such Class in each Reallocated Swingline Loan (if applicable) or Reallocated Letter of Credit of such Class shall be adjusted to be determined under Section 2.18(d) or 2.23 on the basis of such Revolving Bank’s Adjusted Applicable Percentage (and all references in Section 2.18 or 2.23 to “Applicable Percentage” shall be deemed to be references to “Adjusted Applicable Percentage”);
(iB) all or notwithstanding the foregoing:
(1) if any part of the L/C Exposure of such Revolving Bank that becomes a Defaulting Bank shall be reallocated the Swingline Bank or an Issuing Bank or an Affiliate thereof, no adjustment shall be made pursuant to clause (effective A) above with respect to participations in any Swingline Loan made by the Swingline Bank or any Letter of Credit issued by such Issuing Bank, as the case may be;
(2) if all the Defaulting Banks’ Applicable Percentage of the LC Exposure of any Class attributable to the Reallocated Letters of Credit of such Class (the “Defaulting Bank LC Exposure”) and the Swingline Exposure attributable to the Reallocated Swingline Loans (the “Defaulting Bank Swingline Exposure”) collectively exceed the unused portion of the Revolving Commitments of the Non-Defaulting Banks of such Class as of the date time the adjustments are to be made pursuant to clause (A) above (any such Bank becomes a Defaulting Bank) among unused portion being referred to as the non“Maximum Incremental Participation Amount”), then the incremental amount of participations in Letters of Credit of such Class and Swingline Loans acquired by the Non-Defaulting Banks in accordance under clause (A) above (the “Incremental Participations”) shall not exceed at any time the Maximum Incremental Participation Amount with their respective Revolving Percentages, but respect to such Class;
(3) adjustments under Section 2.20(a)(iii)(A) and (B) above shall only be made to the extent that, after giving effect to such adjustments, the sum Revolving Exposure of all nonany Non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s L/C Exposure does Bank with respect to any Class shall not exceed its Revolving Commitment with respect to such Class; and
(4) no adjustment shall be made under Section 2.20(a)(iii)(A) or (B) above if, at the total time such adjustment is made, an Event of all non-Defaulting Banks’ CommitmentsDefault has occurred and is continuing;
(iiC) if the reallocation described in clause (i) above cannotDefaulting Bank LC Exposure with respect to any Class and Defaulting Bank Swingline Exposure collectively exceed the Maximum Incremental Participation Amount with respect to such Class, then the applicable Borrower or can only partially, be effected, the applicable Additional Borrower shall, within two five Domestic Business Days following the Borrower’s after receipt of written notice by to that effect from the Administrative Agent, cash collateralize for the benefit Reallocated Letters of Credit of such Class and prepay the Reallocated Swingline Loans (in a manner and under documentation reasonably satisfactory to the Administrative Agent) in an aggregate amount equal to the excess, if any, of the Defaulting Bank LC Exposure of such Class and Defaulting Bank Swingline Exposure over the Maximum Incremental Participation Amount of such Class or, if agreed to by the applicable Issuing Banks only Bank and/or Swingline Bank, enter into other arrangements with respect to the Reallocated Letters of Credit of such Class or Reallocated Swingline Loans on terms mutually agreed between such Issuing Bank or the Swingline Bank, on the one hand, and the applicable Borrower or applicable Additional Borrower’s obligations corresponding to such Defaulting Bank’s L/C Exposure , on the other hand;
(after giving effect to D) if any partial reallocation Reallocated Letter of Credit shall have been cash collateralized by the applicable Borrower or applicable Additional Borrower 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 (iiC) above, then (x) the applicable Borrower or applicable Additional Borrower shall not be required to pay any letter of credit participation fees to such Defaulting Bank pursuant to Section 2.5(c2.8(b) with respect to the portion of such Reallocated Letter of Credit that is so cash collateralized and (y) to the extent any letter of credit participation fees are not required to be paid by reason of clause (x) above, the reduction in the amount of such fees shall be allocated to the Defaulting Bank’s L/C Exposure during the period such Defaulting Bank’s L/C Exposure is cash collateralizedBanks;
(ivE) if all or any portion of such Defaulting Bank’s L/C Exposure is reallocated an adjustment shall have been made pursuant to clause (iA) aboveabove to the participations of the Non-Defaulting Banks in Reallocated Letters of Credit of any Class, then the Letter letter of Credit credit participation fees that would otherwise would have been payable to such the Revolving Banks that are Defaulting Bank Banks pursuant to Section 2.5(c)(i2.8(b) with respect to the portion of such Defaulting Bank’s reallocated L/C Exposure Reallocated Letters of Credit of such Class equal to the Incremental Participations therein shall instead accrue for the accounts of, and be payable to to, the nonRevolving Banks of such Class that are Non-Defaulting Banks in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocation; andtheir Adjusted Applicable Percentages;
(vF) if all or the Defaulting Bank LC Exposure with respect to any Class at any time shall exceed the sum of the Incremental Participations in respect of Letters of Credit of such Class at such time and the portion of the Reallocated Letters of Credit of such Defaulting Bank’s L/C Exposure is neither reallocated nor Class cash collateralized at such time pursuant to clause (i) or (iiC) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Non-Defaulting Bank hereunder, all letter of credit participation fees payable to the Revolving Banks of such Class that are Defaulting Banks under Section 2.8(b) with respect to the portion of the Defaulting Bank LC Exposure of such Class equal to such excess shall instead accrue for the account of, and be payable to, the applicable Issuing Bank that shall have issued the Reallocated Letters of Credit of such Class; and
(G) the Revolving Exposure of each Non-Defaulting Bank with respect to any Class shall be determined after giving effect to the Incremental Participations acquired by such Revolving Bank with respect to such Class under the foregoing clauses of this clause (iii);
(1) in the event any (x) Letter of Credit shall be issued or amended to increase the amount thereof or (y) Swingline Loan shall be made, (A) the participations of the Non-Defaulting Banks of such Class therein shall be determined in the manner set forth in clause (iii)(A) above, as if such Letter of Credit of such Class or Swingline Loan shall have been a Reallocated Letter of Credit of such Class or a Reallocated Swingline Loan, as the case may be, and (B) letter of credit participation fees that would otherwise would have been payable to the Revolving Banks of such Class that are Defaulting Bank under Banks pursuant to Section 2.5(c)(i2.8(b) with in respect to of any such Defaulting Bank’s unreallocated L/C Exposure Letter of Credit shall be payable subject to Section 2.20(a)(iii)(E) above; provided, however, that, notwithstanding anything 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 Bankcontrary set forth herein, no Issuing Bank of such Class or Swingline Bank shall be required to issue, amend extend, renew or increase the amount of any Letter of CreditCredit of such Class or make any Swingline Loan, as applicable, unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Banks’ Applicable Percentage of the LC Exposure with respect to such Class or Swingline Exposure, as applicable, attributable to such Letter of Credit or Swingline Loan, as applicable, will be 100% entirely covered by the Commitments participations therein of the nonNon-Defaulting Banks and/or cash collateral or other arrangements satisfactory to such Issuing Bank or Swingline Bank provided by the applicable Borrower or applicable Additional Borrower (in a manner and under documentation satisfactory to such Issuing Bank or Swingline Bank, as applicable); and
(2) any amount payable to or for the account of any Defaulting Bank in its capacity as a Bank hereunder (whether on account of principal, interest, fees or otherwise, and including any amounts payable to such Defaulting Bank pursuant to Sections 2.10 and 2.11, but excluding any amounts payable to such Defaulting Bank pursuant to Sections 2.13, 2.15, 2.17, 8.3 and 9.3) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, (A) be applied, at such time or times as may be determined by the Administrative Agent, (1) first, to the payment of any amounts owing by such Defaulting Bank to the Administrative Agent hereunder, (2) second to the payment on a pro rata basis of any amounts owing by such Defaulting Bank to each Issuing Bank and Swingline Bank in respect of such Defaulting Bank’s participations in Letters of Credit and Swingline Loans (and to the extent any such 100% coverage is not achievedamounts shall have been paid by Non-Defaulting Banks as a result of adjustments pursuant to clause (iii) above, by to reimburse such Non-Defaulting Banks for such amounts), (3) third, to cash collateralize participation obligations of such Defaulting Bank in respect of outstanding Letters of Credit (with the concurrent release of an equivalent amount any cash collateral which will be or other collateral security, if any, provided by the applicable Borrower pursuant to this Section) and prepay Swingline Loans on a pro rata basis and (4) fourth, to the funding of such Defaulting Bank’s Applicable Percentage of any Revolving Borrowing in accordance with Section 2.8(c), and participating interests in any newly issued or increased Letter respect of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.8(c)(i) (and which such Defaulting Bank shall have failed to fund such share as required hereunder, (B) to the extent not participate therein). 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 applied as aforesaid, be held, if so long as such event shall continue or (ii) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, will be 100% covered determined by the Commitments Administrative Agent, as cash collateral for funding obligations of such Defaulting Bank in respect of future Loans hereunder, (C) to the non-Disregarded Banks andextent not applied or held as aforesaid, be applied, pro rata, to the payment of any amounts owing to any Borrower or the Non-Defaulting Banks as a result of any judgment of a court of competent jurisdiction obtained by any Borrower or any Non-Defaulting Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations hereunder and (D) to the extent not applied or held as aforesaid, be distributed to such 100% coverage is not achieved, Defaulting Bank or as otherwise directed 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 issued or increased Letter a court of Credit shall be allocated among the non-Disregarded Banks in a manner consistent with Section 2.8(ccompetent jurisdiction.
(b) (and such Disregarded Bank shall not participate therein). In the event that the Administrative Agent, the Borrower Issuing Banks of such Class, the Swingline Bank and the Issuing Banks each agrees Borrowers shall have agreed that a Revolving Bank that is a Defaulting Bank has adequately remedied all matters that caused such Revolving Bank to be become a Defaulting Bank, then (i) such Revolving Bank shall cease to be a Defaulting Bank for all purposes hereof, (ii) the L/C Exposures obligations of the Revolving Banks to purchase participations in Letters of Credit under Section 2.18(d) and Swingline Loans under Section 2.23 shall be readjusted to reflect be determined on the inclusion basis of such Bank’s Commitment, Revolving Banks’ Applicable Percentages and on (iii) such date such Revolving Bank shall purchase at par such of the Revolving Loans of the other Revolving Banks as the Administrative Agent shall determine may to be necessary in order for such Bank to hold such the Revolving Loans to be held by the Revolving Banks in accordance with their Applicable Percentages.
(c) No Revolving Commitment of any Revolving Bank shall be increased or otherwise affected and, except as otherwise expressly provided in this Section, performance by any Borrower or any Additional Borrower of its Revolving Percentageobligations hereunder and under the other Loan Documents shall not be excused or otherwise modified as a result of the operation of this Section. The rights and remedies against, and with respect to, against a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all to other rights and remedies that any Borrower, any Additional Borrower, the Administrative Agent and each BankAgent, the Issuing Banks, the Swingline Bank or any Non-Defaulting Bank may have against such Defaulting Bank (and, for the avoidance of doubt, each Issuing Non-Defaulting Bank or shall have a claim against any Defaulting Bank for any losses it may suffer as a result of the Borrower may at any time have against, or with respect to, such Defaulting Bankoperation of this Section).
Appears in 1 contract
Sources: Credit Agreement (Allegion PLC)
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) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions of Credit of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) 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 10.1); 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 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 Loan Documents, in each case without the consent of such Bank;
(c) if any Swingline Exposure or L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;
(i) all or any part of the Swingline Exposure and L/C Exposure of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, but only to the extent the sum of 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, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 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 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 Administrative Agent, the Borrower and the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 1 contract
Sources: Credit Agreement (Centerpoint Energy Houston Electric LLC)
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) Commitment Facility Fees shall cease to accrue on the unfunded portion unused amount of the Revolving Credit Commitment of such Defaulting Bank pursuant to Section 3.2(a2.07(a);
(b) the Revolving Credit Commitment and Outstanding Extensions of Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether all the Required Banks (or each Bank) or the Majority 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 10.110.01); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an any amendment, waiver or other modification requiring the consent of such Bank all Banks or each Bank all Banks affected thereby if such Bank is an affected Bank; providedshall, furtherexcept as otherwise provided in Section 10.01, 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 Loan Documents, in each case without require the consent of such BankDefaulting Bank in accordance with the terms hereof;
(c) if any L/C Obligations exist LC Exposure exists at the time such Bank becomes a Defaulting Bank then;:
(i) all or any part of the L/C LC Exposure of such Defaulting Bank (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Bank shall have funded its participation as contemplated by Sections 2.03(d) and 2.03(e)) shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the nonNon-Defaulting Banks in accordance with their respective Revolving Percentages, Proportional Shares but only to the extent that the sum of all nonNon-Defaulting Banks’ Outstanding Extensions of Revolving Credit Exposures plus such Defaulting Bank’s L/C LC Exposure (excluding the portion thereof referred to above) does not exceed the total sum of all nonNon-Defaulting Banks’ Revolving Credit Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, Company shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to portion of such Defaulting Bank’s L/C LC Exposure (after giving effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) above) that has not been reallocated, in accordance with the procedures set forth in Section 8.2 2.03(j), for so long as such L/C LC Exposure is outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Bank’s L/C LC Exposure pursuant to clause (ii) above, the Borrower Company shall not be required to pay any participation fees to such Defaulting Bank pursuant to Section 2.5(c2.07(b) with respect to such Defaulting Bank’s L/C Exposure during the period portion of such Defaulting Bank’s L/C LC Exposure for so long as such Defaulting Bank’s LC Exposure is cash collateralized;
(iv) if all or any portion of the LC Exposure of such Defaulting Bank’s L/C Exposure Bank is reallocated pursuant to clause (i) above, then the Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank the Banks pursuant to Section 2.5(c)(i2.07(b) with respect to such Defaulting Bank’s reallocated L/C Exposure shall be payable adjusted to the non-Defaulting Banks in accordance with such non-Defaulting Banks’ Revolving Percentages after giving give effect to such reallocation; and
(v) if all or any portion of such Defaulting Bank’s L/C 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, 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)(i2.07(b) with respect to such Defaulting Bank’s unreallocated L/C LC Exposure shall be payable to the Issuing Banks, Banks (and allocated among them ratably based on the portion amount of such L/C Defaulting Bank’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank, ) until and to the extent that such L/C LC Exposure is reallocated and/or cash collateralized pursuant to clause (i) or (ii) above;collateralized; and
(dvi) so long as such Bank is a Defaulting Bank, no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, Credit unless the Issuing Banks are it is satisfied that the related exposure and the Defaulting Bank’s then outstanding L/C Exposure, LC Exposure will be 100% fully covered by the Revolving Credit Commitments of the nonNon-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower Company in accordance with Section 2.8(c2.03(j), and participating interests in any newly issued such issued, amended, renewed or increased extended Letter of Credit shall will be allocated among nonthe Non-Defaulting Banks in a manner consistent with Section 2.8(c)(i2.14(c)(i) (and such Defaulting Bank shall not participate therein). 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 Administrative Agent, the Borrower Company and the each Issuing Banks Bank each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C LC Exposures of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment, Revolving Credit Commitment and on such date such Bank shall purchase at par such of the Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving PercentageProportional Share. The rights and remedies againstSubject to Section 10.19, and with respect to, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies arising from that the Administrative Agent and each Bank having become a Defaulting Bank, each Issuing including any claim of a Non-Defaulting Bank or the Borrower may at any time have against, or with respect to, 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 or any other Loan Document 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) Commitment Fees shall cease to accrue on the unfunded portion of with respect to the Commitment of such Defaulting Bank pursuant to Section 3.2(a);2.4.
(b) the The Commitment and Outstanding Extensions of Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.19.1); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of all Banks or each affected Bank which would increase or extend the term of the Commitment of such Defaulting Bank or each which affects such Defaulting Bank differently than other affected thereby if such Bank is an affected Bank; provided, further, that there Banks 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 Loan Documents, in each case without require the consent of such Defaulting Bank;.
(c) if If any L/C Obligations exist at the time such a Bank becomes a Defaulting Bank Bank, then;:
(i) all or any part of the such L/C Exposure of such Defaulting Bank Obligations shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks ratably in accordance with their respective Revolving Percentages, Commitments but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Extensions of Revolving Credit plus such Defaulting Bank’s L/C Exposure 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 Borrower shall, Company shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, Paying Agent cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to percentage such Defaulting Bank’s Commitment represents of the Total Commitment of the L/C Exposure Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 8.2 7.2 for so long as such L/C Exposure is Obligations are outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Bank’s L/C Exposure Obligations pursuant to clause (ii) abovethis Section 2.22(c), the Borrower Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c) 3.3 with respect to such Defaulting Bank’s portion of the L/C Exposure Obligations during the period of such Defaulting Bank’s L/C Exposure is cash collateralizedcollateralization;
(iv) if all or any portion of such Defaulting Bank’s the L/C Exposure is reallocated pursuant to clause (i) above, then the Letter Obligations 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 are reallocated pursuant to this Section 2.22(c), then the fees payable to the Banks pursuant to Section 3.3 shall be adjusted ratably in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocationtheir respective Commitments; and
(v) if all or any portion of such Defaulting Bank’s L/C Exposure is Obligations are neither reallocated nor cash collateralized nor reallocated pursuant to clause (i) or (ii) abovethis Section 2.22(c), then, without prejudice to any rights or remedies of any the applicable Issuing Bank or any other Bank hereunder, all Letter of Credit participation fees 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 2.5(c)(i) 3.3 with respect to such Defaulting Bank’s unreallocated L/C Exposure Obligations shall be payable to the applicable Issuing Banks, ratably based on the portion of Bank until 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 Obligations are cash collateralized pursuant to clause (i) or (ii) above;and/or reallocated. 509265-1983-14872-Active.19588122.12
(d) so So long as such any Bank is a Defaulting Bank, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Exposure, related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower Company in accordance with Section 2.8(c2.22(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 2.8(c)(i2.22(c)(i) (and such Defaulting Bank Banks shall not participate therein). If .
(e) Any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 2.16, but excluding amounts payable pursuant to Section 2.23) shall, in lieu of being distributed to such Defaulting Bank, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Paying Agent (i) a Bankruptcy Event or a Bail-In Action with respect first, to a Parent the payment of any amounts owing by such Defaulting Bank shall occur following to the date hereof and for so long as such event shall continue or 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 has a good faith belief that in respect of any Bank has defaulted existing or future participating interest in fulfilling its obligations to extend credit generally (such Bank referenced in clauses (i) and (ii), a “Disregarded Bank”), the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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(iv) fourth, to the extent funding of any Loan in respect of which such 100% coverage is not achievedDefaulting 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 which will be provided for future funding obligations of the Defaulting Bank in respect of any Loans under this Agreement, (vi) sixth, to the payment of any amounts owing to the 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 Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, (vii) seventh, 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 Borrower in the manner consistent Company against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, and (viii) eighth, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction, provided, with Section 2.8(crespect to this clause (viii), and participating interests that if such payment is (x) a prepayment of the principal amount of any Loans or reimbursement obligations in respect of any newly issued or increased Letter drafts paid by an Issuing Bank under any Letters of Credit which a Defaulting Bank has funded its participation obligations and (y) made at a time when the conditions set forth in Section 4.3 are satisfied, such payment shall be allocated among applied solely to prepay the Loans of, and reimbursement obligations owed to, all non-Disregarded Defaulting Banks in a manner consistent with Section 2.8(c) (and such Disregarded Bank shall not participate therein)pro rata prior to being applied to the prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Bank. In the event that the Administrative Paying Agent, the Borrower each Issuing Bank and the Issuing Banks Company each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank or upon receipt by the Paying Agent of the confirmation referred to in clause (c) of the definition of “Defaulting Bank”, as applicable, then the L/C Exposures of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment, and on such date such Bank shall purchase at par such portion of the Revolving Loans of the other Banks as the Administrative Paying Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans ratably in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting BankCommitment.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Southwest Airlines Co)
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) Commitment Fees fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a)3.1;
(b) the Commitment and Outstanding Extensions of Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.1); provided9.4, provided that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendmentany waiver, waiver amendment or other modification requiring the consent of such Bank all Banks or each affected Bank which affects such Defaulting Bank differently than other 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 Loan Documents, in each case without require the consent of such Defaulting Bank);
(c) if any L/C Letter of Credit Obligations shall exist at the time such a Bank becomes a Defaulting Bank then;:
(i1) all or any part of the L/C Exposure unfunded participations in and commitments with respect to Letters of such Defaulting Bank Credit shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, Pro-Rata Shares but only to the extent (y) the sum of all non-Defaulting Banks’ Outstanding Extensions of Credit Exposure plus such Defaulting Bank’s L/C Exposure 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;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.
(ii2) if the reallocation described in clause (i1) above cannot, or can only partially, be effected, the Borrower shall, shall within two three Business Days following the Borrower’s receipt of written notice by the Administrative Agent, 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) Pro- Rata Share of the Letter of Credit Obligations in accordance with the procedures set forth in Section 8.2 below for so long as such L/C LC Exposure is outstanding;
(iii3) if the Borrower cash collateralizes any portion of such Defaulting Bank’s L/C LC Exposure pursuant to clause (ii2) above, the Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c2.3(b) with respect to such Defaulting Bank’s L/C LC Exposure during the period such Defaulting Bank’s L/C LC 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
(v4) if all or any portion of such Defaulting Bank’s L/C LC Exposure is neither reallocated nor not cash collateralized pursuant to clause (i) or (ii2) above, then, without prejudice to any rights or remedies of any the Issuing Bank Bank(s) or any other Bank hereunder, all Letter of Credit participation fees that otherwise would have been Fees payable to such Defaulting Bank under Section 2.5(c)(i2.2(b) with respect to such Defaulting Bank’s unreallocated L/C LC Exposure shall be payable to the Issuing Banks, ratably based on the portion of Bank(s) until such L/C Exposure attributable to Letters of Credit issued by each Issuing Bank, until and to the extent that such L/C LC Exposure is reallocated and/or cash collateralized pursuant to clause (i) or (ii) abovecollateralized;
(d) so long as such any Bank is a Defaulting Bank, no the Issuing Bank Bank(s) shall not be required to issue, amend issue or increase modify any Letter of Credit, unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Exposure, related 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(c3.8(c); and
(e) any amount payable to such Defaulting Bank hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Bank pursuant to Section 2.18(b)) shall, in lieu of being distributed to such Defaulting Bank, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent (i) 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), and (iii) third, to the funding of any Revolving Credit Loan or the funding or cash collateralization of any participating interests interest in 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 respect of which such Defaulting Bank shall not participate therein). If (i) a Bankruptcy Event or a Bail-In Action with respect has failed to a Parent of any Bank shall occur following the date hereof and for so long fund its portion thereof as such event shall continue or (ii) 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)required by this Agreement, a “Disregarded Bank”), the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Banks are satisfied that the Disregarded Bank’s then outstanding L/C Exposure, will be 100% covered as determined 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 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 Administrative Agent, the Borrower and the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank(iv) fourth, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as if so determined by the Administrative Agent shall determine may be necessary and the Borrower, held in order such account as cash collateral for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a future funding obligations of the Defaulting Bank under this Section 2.8 are in addition toAgreement, and cumulative and not in limitation of(v) fifth, all other rights and remedies that to the Administrative Agent and each Bank, each Issuing Bank payment of any amounts owing to the Borrower or the Banks as a result of any judgment of a court of competent jurisdiction obtained by the Borrower may at or any time have against, or with respect to, Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement, (vi) sixth, if so determined by the Administrative Agent, distributed to the Banks other than the Defaulting Bank until the ratio of the Outstanding Credit Exposure of such Banks to the Aggregate Outstanding Credit Exposure equals such ratio immediately prior to the Defaulting Bank’s failure to fund any portion of any Loans or participations in Letters of Credit and (vii) seventh, to such Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided, that if such payment is a prepayment of the principal amount of any Loans or Reimbursement Obligations in respect of draws under Letters of Credit with respect to which the applicable Issuing Bank has funded its participation obligations, such payment 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 prepayment of any Loans, or Reimbursement Obligations owed to, any Defaulting Bank.
Appears in 1 contract
Sources: Credit Agreement (Cerner Corp /Mo/)
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, if (a) If any Bank becomes with a Revolving Credit Commitment becomes, and during the period it remains, a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) the Commitment and Outstanding Extensions of Credit of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendmentapply, waiver or other modification pursuant to Section 10.1); provided, that this clause (b) shall not apply notwithstanding anything to the vote of a Defaulting Bank contrary 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 Loan Documents, in each case without the consent of such Bank;
(c) if any L/C Obligations exist at the time such Bank becomes a Defaulting Bank then;Agreement:
(i) so long as no Default shall be continuing immediately before or after giving effect to such reallocation, all or any part of the L/C Exposure of such Defaulting Bank shall Bank's participation in Letter of Credit Outstandings and Swing Loans will, subject to the limitation in the proviso below, automatically be reallocated (effective as of no later than one (1) Business Day after the date Administrative Agent has actual knowledge that such Bank becomes has become a Defaulting Bank) among the nonNon-Defaulting Banks pro rata in accordance with their respective Revolver Percentages (calculated as if the Defaulting Bank's Revolving Percentages, but only Credit Commitment was reduced to the extent zero and each Non-Defaulting Bank's Revolving Credit Commitment had been increased proportionately); provided that the sum of all noneach Non-Defaulting Banks’ Outstanding Extensions of Bank's total Revolving Credit plus such Defaulting Bank’s L/C Exposure does may not in any event exceed the total Revolving Credit Commitment of all nonsuch Non-Defaulting Banks’ Commitments;Bank as in effect at the time of such reallocation; and
(ii) if to 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, 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 extent that any portion (the "unreallocated portion") of such Defaulting Bank’s L/C Exposure pursuant to clause (ii) above, the Borrower shall 's participation in Letter of Credit Outstandings and Swing Loans cannot 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) aboveabove for any reason, then the Borrower will, not later than two (2) Business Days after demand by the Administrative Agent (at the direction of any Letter of Credit Issuer and/or the Swing Lender), (y) Cash Collateralize the obligations of the Borrower to such Letter of Credit Issuer or the Swing Lender in respect of such exposure, as the case may be, in an amount at least equal to the aggregate amount of the unreallocated portion of such Defaulting Bank's participation in Letter of Credit Outstandings and Swing Loans or (z) make other arrangements satisfactory to the Administrative Agent, the Letter of Credit participation Issuer and the Swing Lender in their sole discretion to protect them against the risk of non-payment by such Defaulting Bank; provided that, subject to Section 10.17, neither any such reallocation nor any payment by a Non-Defaulting Bank pursuant thereto nor any such Cash Collateralization or reduction will constitute a waiver or release of any claim the Borrower, the Administrative Agent, a Letter of Credit Issuer, the Swing Lender or any other Bank may have against such Defaulting Bank or cause such Defaulting Bank to be a Non-Defaulting Bank.
(b) Any payment of principal, interest, fees that otherwise would have been payable or other amounts received by the Administrative Agent for the account of a Defaulting Bank (whether voluntary or mandatory, at maturity, pursuant to such Article 6 or otherwise) or received by the Administrative Agent from a Defaulting Bank pursuant to Section 2.5(c)(i) with respect 10.4 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’s reallocated L/C Exposure shall be payable Bank to the non-Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Banks in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect Bank to such reallocationthe Letter of Credit Issuer or the Swing Lender hereunder; and
(v) if all or any third, to Cash Collateralize the unreallocated 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 's participation in Letter of Credit Outstandings and Swing Loans in accordance with Section 2.17(a)(ii); fourth, if such Defaulting Bank is a CAD Non-Funding Bank, to the payment of any amounts owing by such Defaulting Bank to the CAD Fronting Bank as provided in Section 2.1(h)(ii); fifth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan or funded participation fees that otherwise would have been payable 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; sixth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (A) satisfy such Defaulting Bank's potential future funding obligations with respect to Loans and funded participations under this Agreement and (B) Cash Collateralize future unreallocated portions of such Defaulting Bank's participation in Letter of Credit Outstandings and Swing Loans with respect to future Letters of Credit and Swing Loans issued under this Agreement in accordance with Section 2.17(a)(ii); seventh, to the payment of any amounts owing to the Banks, the Letter of Credit Issuer or the Swing Lender as a result of any judgment of a court of competent jurisdiction obtained by any Bank, such Letter of Credit Issuer or the Swing Lender 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 or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting 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 (1) such payment is a payment of the principal amount of any Loans or funded participations in Letters of Credit or Swing Loans in respect of which such Defaulting Bank has not fully funded its appropriate share, and (2) such Loans were made or the related Letters of Credit or Swing Loans were issued 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 funded participations in Letters of Credit or Swing Loans owed to, all Non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loans of, or funded participations in Letters of Credit or Swing Loans owed to, such Defaulting Bank until such time as all Loans and funded and unfunded participations in Letter of Credit Outstandings and Swing Loans are held by the Banks pro rata in accordance with the Revolving Credit Commitments under the applicable Revolving Credit without giving effect to Section 2.5(c)(i2.17(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 2.17(b) shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto.
(c) If the Borrower, the Administrative Agent, the Letter of Credit Issuers and the Swing Lender agree in writing in their discretion that any Defaulting Bank has ceased 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, that Bank will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Banks or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Loans to be held pro rata by the Banks in accordance with their Percentage under the applicable Credit without giving effect to Section 2.17(a), whereupon such Bank will cease to be a Defaulting Bank; provided that no adjustments will be made retroactively with respect to such fees accrued or payments made by or on behalf of the Borrower while that Bank was a Defaulting Bank’s unreallocated L/C Exposure shall be payable to the Issuing Banks; and provided, ratably based on the portion of such L/C Exposure attributable to Letters of Credit issued by each Issuing Bankfurther, until and 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 that such L/C Exposure is reallocated and/or cash collateralized pursuant to clause (i) or (ii) above;Bank's having been a Defaulting Bank.
(d) so So long as such any Bank is a Defaulting Bank, no Issuing Bank shall Letter of Credit Issuer will be required to issue, amend amend, extend, renew or increase any Letter of Credit, Credit unless the Issuing Banks are it is reasonably satisfied that the Borrower has complied with the requirements of Section 2A.1(a)(iii).
(e) No Defaulting Bank shall be entitled to receive any commitment fee pursuant to Section 2.7(a) or Letter of Credit Fee for any period during which that Bank is a Defaulting Bank’s then outstanding L/C Exposure. With respect to any commitment fee pursuant to Section 2.7(a) or Letter of Credit Fee not required to be paid to any Defaulting Bank pursuant to this clause (e), will be 100% covered by the Commitments of the nonBorrower shall (x) pay to each Non-Defaulting Banks andBank that portion of any such fee otherwise payable to such Defaulting Bank with respect to such Defaulting Bank's participation in Letters of Credit or Swing Loans that has been reallocated to such Non-Defaulting Bank pursuant to Section 2.17(a)(i), (y) pay to each Letter of Credit Issuer and Swing Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Bank to the extent allocable to 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 issued or increased Letter of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.8(c)(i) (and Issuer or Swing Lender's Fronting Exposure to such Defaulting Bank shall not participate therein). 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) 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) Bank, and (ii), a “Disregarded Bank”), the Issuing Bank shall z) not be required to issue, amend or increase pay the remaining amount of any Letter of Credit, unless 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 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 Administrative Agent, the Borrower and the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bankfee.
Appears in 1 contract
Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document 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) Commitment Fees shall cease to accrue on the unfunded portion of neither the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) nor the Commitment and Outstanding Extensions of Credit Loans of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.19.05); providedprovided that any waiver, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks which affects such Defaulting Bank or each Bank differently than other affected thereby if Banks shall require the consent of such Bank is an affected Defaulting Bank; providedprovided further that no waiver, further, that there shall not be any amendment, amendment or modification or waiver of the type described in clause (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 of Section 9.05 may be made without the written consent of any Defaulting Bank affected thereby;
(b) the Company may, at its sole expense, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the assignment restrictions contained in Section 9.06, with the Company or transfer by the Borrower of any replacement Bank paying the processing and recording fee), all of its respective interests, rights and obligations under this Agreement and to an Assignee that shall assume such obligations (which Assignee may be another Bank, if a Bank accepts such assignment); provided that (i) the other Loan Documents, in each case without Company shall have received the prior written consent of the Administrative Agent to such Bankassignment (to the extent such consent would otherwise be required pursuant to Section 9.06), which consent shall not unreasonably be withheld, delayed or conditioned, and (ii) such Defaulting Bank shall have received payment of an amount equal to the outstanding 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 principal and accrued interest and fees) or the Company;
(c) if any L/C Obligations exist at facility fees shall cease to accrue on the time such Bank becomes a Defaulting Bank then;
(i) all or any part unused portion of the L/C Exposure Commitment of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, but only to the extent the sum of all non-Defaulting Banks’ 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, 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, 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) above2.08;
(d) so long as such notwithstanding any contrary provision in this Agreement, the Company may (i) prepay, without penalty or premium, the Loans made by a Defaulting Bank is and (ii) terminate the unused amount of the Commitment of a Defaulting Bank, no Issuing Bank shall in each case, (x) without pro rata prepayment of Loans of other Banks or pro rata termination of Commitments of other Banks and (y) upon not less than two Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof), it being understood that such prepayment and termination will not be required deemed to issue, amend be a waiver or increase release of any Letter of Credit, unless claim the Issuing Banks are satisfied that Company or the Administrative Agent may have against such Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered by ; and
(e) nothing in this Section shall affect any rights or remedies the Commitments of the non-Company may have against any 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 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 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 and on the date that the Administrative Agent, the Borrower Agent and the Issuing Banks Company each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights Commitment and remedies against, and with respect to, such Bank shall no longer be a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 1 contract
Defaulting Banks. (a) 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:
(ai) Commitment Fees facility fees shall cease to accrue accrue, or to be payable by the Borrower, on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a)2.09(a) for the account of such Defaulting Bank or otherwise;
(bii) 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 and Outstanding Extensions of or Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.19.05); provided, however, that this clause (biii) 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 if (and in circumstances where the consent of “all Banks” is required, such Bank is an affected Defaulting Bank; provided, further, that there ’s vote shall not be any amendment, modification included except (A) such Defaulting Bank’s Commitment may not be increased or waiver extended without its consent and (iB) of any provision of Section 4.2 or Section 10.1 in a manner that would alter the pro rata sharing of payments required therebyprincipal amount of, or (ii) causing interest or fees payable on, Loans or L/C Borrowings may not be reduced or excused or the reduction scheduled date of the percentage specified in the definition of Majority Banks, or (iii) causing the consent payment may not be postponed as to the assignment or transfer by the Borrower of any of its respective rights and obligations under this Agreement and the other Loan Documents, in each case such Defaulting Bank without the consent of such Defaulting Bank;’s consent); and
(civ) if any L/C Obligations exist AdvanceObligation exists at the time such Bank becomes a Defaulting Bank then;:
(iA) provided that no Default or Event of Default exists, all or any part of the L/C Exposure Advance of such Defaulting Bank Banksuch Defaulting Bank’s Pro Rata Share of the Outstanding Amount of all L/C Obligations shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, Pro Rata Shares but only to the extent the sum of the aggregate Outstanding Amount of theprincipal amount of Revolving Loans of all non-Defaulting Banks’ Outstanding Extensions of Credit Banks’Bank’s plus such Defaulting Bank’s L/C Exposure does Advance doesPro Rata Share of the Outstanding Amount of all L/C Obligations do not exceed the total of all non-Defaulting Banks’ Commitments;
(iiB) if the reallocation described in clause (iA) above cannot, or can only partially, be effected, the Borrower shall, shall within two one Domestic Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, cash collateralize Agent Cash Collateralize for the benefit of the applicable Issuing Banks Bank only the Borrower’s obligations corresponding to such Defaulting Bank’s Pro Rata Share of the Outstanding Amount of all L/C Exposure AdvanceObligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 8.2 2.20(e)(i) for so long as such LLC Advance isL/C Exposure is Obligations are outstanding;
(iiiC) if the Borrower cash collateralizes Cash Collateralizes any portion of such Defaulting Bank’s L/C Exposure AdvanceObligations pursuant to clause (iiB) above, the Borrower shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c2.09(c) with respect to such Defaulting Bank’s L/C Exposure AdvanceObligations during the period such Defaulting Bank’s L/C Exposure is cash collateralizedAdvance isObligations are Cash Collateralized;
(ivD) if the L/C AdvancesObligations 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 Exposure is Advance isObligations are neither reallocated nor Cash Collateralized 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 (iA) or (iiB) above, then, without prejudice to any rights or remedies of any the Issuing Bank or any other Bank hereunder, all Letter of Credit participation 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 AdvanceObligations) and letter of credit fees payable under Section 2.5(c)(i2.09(c) with respect to such Defaulting Bank’s unreallocated L/C Exposure AdvanceObligations 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, Bank until and to the extent that such L/C Exposure is Advance isObligations are reallocated and/or cash collateralized pursuant to clause (i) or (ii) above;
(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 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 Cash Collateralized; 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 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 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 Administrative Agent, the Borrower and the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 1 contract
Sources: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
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) Commitment Facility Fees shall cease to accrue on the unfunded portion unused amount of the Revolving Credit Commitment of such Defaulting Bank pursuant to Section 3.2(a2.07(a);
(b) the Revolving Credit Commitment and Outstanding Extensions of Revolving Credit Exposure of such Defaulting Bank shall not be included in determining whether all the Required Banks (or each Bank) or the Majority 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 10.110.01); provided, provided that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an any amendment, waiver or other modification requiring the consent of such Bank all Banks or each Bank all Banks affected thereby if such Bank is an affected Bank; providedshall, furtherexcept as otherwise provided in Section 10.01, 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 Loan Documents, in each case without require the consent of such BankDefaulting Bank in accordance with the terms hereof;
(c) if any L/C Obligations exist LC Exposure exists at the time such Bank becomes a Defaulting Bank then;:
(i) all or any part of the L/C LC Exposure of such Defaulting Bank (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to which such Defaulting Bank shall have funded its participation as contemplated by Sections 2.03(d) and 2.03(e)) shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the nonNon-Defaulting Banks in accordance with their respective Revolving Percentages, Proportional Shares but only to the extent that the sum of all nonNon-Defaulting Banks’ Outstanding Extensions of Revolving Credit Exposures plus such Defaulting Bank’s L/C LC Exposure (excluding the portion thereof referred to above) does not exceed the total sum of all nonNon-Defaulting Banks’ Revolving Credit Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, Company shall within two one Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to portion of such Defaulting Bank’s L/C LC Exposure (after giving effect other than any portion thereof referred to any partial reallocation pursuant to in the parenthetical in such clause (i)) above) that has not been reallocated, in accordance with the procedures set forth in Section 8.2 2.03(j), for so long as such L/C LC Exposure is outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Bank’s L/C LC Exposure pursuant to clause (ii) above, the Borrower Company shall not be required to pay any participation fees to such Defaulting Bank pursuant to Section 2.5(c2.07(b) with respect to such Defaulting Bank’s L/C Exposure during the period portion of such Defaulting Bank’s L/C LC Exposure for so long as such Defaulting Bank’s LC Exposure is cash collateralized;
(iv) if all or any portion of the LC Exposure of such Defaulting Bank’s L/C Exposure Bank is reallocated pursuant to clause (i) above, then the Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank the Banks pursuant to Section 2.5(c)(i2.07(b) with respect to such Defaulting Bank’s reallocated L/C Exposure shall be payable adjusted to the non-Defaulting Banks in accordance with such non-Defaulting Banks’ Revolving Percentages after giving give effect to such reallocation; and
(v) if all or any portion of such Defaulting Bank’s L/C 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, 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)(i2.07(b) with respect to such Defaulting Bank’s unreallocated L/C LC Exposure shall be payable to the Issuing Banks, Banks (and allocated among them ratably based on the portion amount of such L/C Defaulting Bank’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank, ) until and to the extent that such L/C LC Exposure is reallocated and/or cash collateralized pursuant to clause (i) or (ii) above;collateralized; and
(dvi) so long as such Bank is a Defaulting Bank, no Issuing Bank shall be required to issue, amend amend, renew or increase extend any Letter of Credit, Credit unless the Issuing Banks are it is satisfied that the related exposure and the Defaulting Bank’s then outstanding L/C Exposure, LC Exposure will be 100% fully covered by the Revolving Credit Commitments of the nonNon-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower Company in accordance with Section 2.8(c2.03(j), and participating interests in any newly issued such issued, amended, renewed or increased extended Letter of Credit shall will be allocated among nonthe Non-Defaulting Banks in a manner consistent with Section 2.8(c)(i2.14(c)(i) (and such Defaulting Bank shall not participate therein). 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 Administrative Agent, the Borrower Company and the each Issuing Banks Bank each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C LC Exposures of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment, Revolving Credit Commitment and on such date such Bank shall purchase at par such of the Revolving Loans of the other Banks (other than Competitive Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving PercentageProportional Share. The rights and remedies againstSubject to Section 10.19, and with respect to, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies arising from that the Administrative Agent and each Bank having become a Defaulting Bank, each Issuing including any claim of a Non-Defaulting Bank or the Borrower may at any time have against, or with respect to, as a result of such Non-Defaulting Bank’s increased exposure following such reallocation.
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Defaulting Banks. Notwithstanding any provision of this Agreement or any other Loan Document 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) Commitment Fees shall cease to accrue on the unfunded portion of neither the Commitment of such Defaulting Bank pursuant to Section 3.2(a);
(b) nor the Commitment and Outstanding Extensions of Credit Loans of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.19.05); providedprovided that any waiver, that this clause (b) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver amendment or other modification requiring the consent of all Banks which affects such Defaulting Bank or each Bank differently than other affected thereby if Banks shall require the consent of such Bank is an affected Defaulting Bank; providedprovided further that no waiver, further, that there shall not be any amendment, amendment or modification or waiver of the type described in clause (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 of Section 9.05 may be made without the written consent of any Defaulting Bank affected thereby;
(b) the Company may, at its sole expense, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank to assign and delegate, without recourse (in accordance with and subject to the assignment restrictions contained in Section 9.06, with the Company or transfer by the Borrower of any replacement Bank paying the processing and recording fee), all of its respective interests, rights and obligations under this Agreement and to an Assignee that shall assume such obligations (which Assignee may be another Bank, if a Bank accepts such assignment); provided that (i) the other Loan Documents, in each case without Company shall have received the prior written consent of the Administrative Agent to such Bankassignment (to the extent such consent would otherwise be required pursuant to Section 9.06), which consent shall not unreasonably be withheld, delayed or conditioned, and (ii) such Defaulting Bank shall have received payment of an amount equal to the outstanding 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 principal and accrued interest and fees) or the Company;
(c) if any L/C Obligations exist at facility fees shall cease to accrue on the time such Bank becomes a Defaulting Bank then;
(i) all or any part unused portion of the L/C Exposure Commitment of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, but only to the extent the sum of all non-Defaulting Banks’ 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, 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, 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) above2.08;
(d) so long as such notwithstanding any contrary provision in this Agreement, the Company may (i) prepay, without penalty or premium, the Loans made by a Defaulting Bank is and (ii) terminate the unused amount of the Commitment of a Defaulting Bank, no Issuing Bank shall in each case, (x) without pro rata prepayment of Loans of other Banks or pro rata termination of Commitments of other Banks and (y) upon not less than two Domestic Business Days’ prior notice to the Administrative Agent (which will promptly notify the Banks thereof), it being understood that such prepayment and termination will not be required deemed to issue, amend be a waiver or increase release of any Letter of Credit, unless claim the Issuing Banks are satisfied that Company or the Administrative Agent may have against such Defaulting Bank’s then outstanding L/C Exposure, will be 100% covered by ; and
(e) nothing in this Section shall affect any rights or remedies the Commitments of the non-Company may have against any 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 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 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 and on the date that the Administrative Agent, the Borrower Agent and the Issuing Banks Company each agrees agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights Commitment and remedies against, and with respect to, such Bank shall no longer be a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.
Appears in 1 contract
Sources: Five Year Credit Agreement (Rockwell Automation Inc)
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) Commitment Fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a2.5(a);
(b) the Commitment and Outstanding Extensions of Credit Exposure of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Banks have taken or may take any action hereunder (including any consent to any amendment, amendment or waiver or other modification pursuant to Section 10.1); 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 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 Loan Documents, in each case without the consent of such Bank;)
(c) if any L/C LC Obligations exist at the time such 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 the L/C Exposure of such Defaulting Bank LC Obligation shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, Pro Rata Share but only to the extent (x) the sum of all non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s L/C 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 clause subclause (i) above cannot, or can only partially, be effected, the Borrower shall, Company shall within two one (1) Business Days Day following the Borrower’s receipt of written notice by the Administrative Agent, cash collateralize for the benefit of the applicable Issuing Banks only the Borrower’s obligations corresponding to relevant LC Issuer such Defaulting Bank’s L/C Exposure Pro Rata Share of the LC Obligations (after giving effect to any partial reallocation pursuant to clause subclause (i) above) in accordance with the procedures set forth in Section 8.2 9.2 for so long as such L/C Exposure LC Obligation is outstanding;
(iii) if the Borrower Company cash collateralizes any portion of such Defaulting Bank’s L/C Exposure Pro Rata Share of the LC Obligations pursuant to this clause (ii) abovec), the Borrower Company shall not be required to pay any fees to such Defaulting Bank pursuant to Section 2.5(c) 3.4 with respect to such Defaulting Bank’s L/C Exposure Pro Rata Share of the LC Obligations during the period such Defaulting Bank’s L/C Exposure Pro Rata Share of the LC Obligations is cash collateralized;
(iv) if all or any portion the non-Defaulting Banks’ Pro Rata Share of such Defaulting Bank’s L/C Exposure the LC Obligations is reallocated pursuant to this clause (i) abovec), then the Letter of Credit participation fees that otherwise would have been payable to such Defaulting Bank the Banks pursuant to Section 2.5(c)(i2.5(a) with respect to such Defaulting Bank’s reallocated L/C Exposure and Section 3.4 shall be payable to the non-Defaulting Banks adjusted in accordance with such non-Defaulting Banks’ Revolving Percentages after giving effect to such reallocationPro Rata Shares; andor
(v) if all or any portion of such Defaulting Bank’s L/C Exposure Pro Rata Share of the LC Obligations is neither reallocated nor cash collateralized pursuant to this clause (i) or (ii) abovec), then, without prejudice to any rights or remedies of any Issuing Bank LC Issuer or any other Bank hereunder, all Letter of Credit participation 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 Obligations) and LC Fees payable under Section 2.5(c)(i) 3.4 with respect to such Defaulting Bank’s unreallocated L/C Exposure Pro Rata Share of the LC Obligations shall be payable to the Issuing Banks, ratably based on applicable LC Issuer until such Defaulting Bank’s Pro Rata Share of 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 LC Obligation is reallocated and/or cash collateralized pursuant to clause (i) or (ii) above;and/or reallocated; and
(d) so long as such any Bank is a Defaulting Bank, no Issuing Bank LC Issuer shall be required to issue, amend issue or increase Modify any Letter of CreditFacility LC, unless the Issuing Banks are it is satisfied that the Defaulting Bank’s then outstanding L/C Exposure, related exposure will be 100% covered by the Commitments of the non-Defaulting Banks and, to the extent such 100% coverage is not achieved, by and/or cash collateral which will be provided by the Borrower Company in accordance with Section 2.8(c)clause (c) above, and participating interests in any such newly issued or increased Letter of Credit Modified Facility LC shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.8(c)(iclause(c)(i) above (and such Defaulting Bank Banks shall not participate therein). .
(e) 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) the Issuing Bank 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 generally (credit, such Bank referenced in clauses (i) and (ii), a “Disregarded Bank”), the Issuing Bank LC Issuer shall not be required to issue, amend or increase any Letter of CreditFacility LC, unless such LC Issuer, as the Issuing Banks are satisfied that case may be, shall have entered into arrangements with the Disregarded Company or such Bank’s then outstanding L/C Exposure, will be 100% covered by satisfactory to such LC Issuer, as the Commitments of the non-Disregarded Banks andcase may be, to the extent defease any risk to it in respect of 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 issued or increased Letter of Credit shall be allocated among the non-Disregarded Banks in a manner consistent with Section 2.8(cBank hereunder.
(f) (and such Disregarded Bank shall not participate therein). In the event that the Administrative Agent, the Borrower Company, and the Issuing Banks each LC Issuer each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures Banks’ Pro Rata Shares of the Banks LC Obligations shall be readjusted to reflect the inclusion of such Bank’s Commitment, Commitment and on such date such Bank shall purchase at par such of the Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies againstPro Rata Share of the Aggregate Commitment; provided, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that if the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at Company cash collateralized any time have against, or with respect to, portion of such Defaulting Bank’s Pro Rata Share of the LC Obligations pursuant to Section 4.7(c), such cash shall be returned to the Company.
Appears in 1 contract
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:
(ai) Commitment Fees fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Bank pursuant to Section 3.2(a)2.3 [Commitment Fees];
(bii) the Commitment and Outstanding Extensions of Credit outstanding Loans of such Defaulting Bank shall not be included in determining whether all Banks (or each Bank) or the Majority Required Banks have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.111.1 [Modifications, Amendments or Waivers]); provided, that this clause (bii) 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 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 Loan Documents, in each case without the consent of such Bank;
(c) if any L/C Swing Loans are outstanding or any Letter of Credit Obligations exist at the time such Bank becomes a Defaulting Bank Bank, then;:
(ia) all or any part of the L/C Exposure outstanding Swing Loans and Letter of Credit Obligations of such Defaulting Bank shall be reallocated (effective as of the date such Bank becomes a Defaulting Bank) among the non-Defaulting Banks in accordance with their respective Revolving Percentages, Ratable Shares but only to the extent that (x) the sum of all non-Defaulting Banks’ Outstanding Extensions of Credit plus such Defaulting Bank’s L/C Exposure Revolving Facility Usage does not exceed the total of all non-Defaulting Banks’ Bank's Revolving Credit 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, 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, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless 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 issued (y) no Potential Default or increased Letter Event of Credit shall be allocated among non-Defaulting Banks in a manner consistent with Section 2.8(c)(i) (Default has occurred and is continuing at such Defaulting Bank shall not participate therein). 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) 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 Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless 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 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 Administrative Agent, the Borrower and the Issuing Banks each agrees that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Exposures of the Banks 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 Revolving Loans of the other Banks as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Revolving Loans in accordance with its Revolving Percentage. The rights and remedies against, and with respect to, a Defaulting Bank under this Section 2.8 are in addition to, and cumulative and not in limitation of, all other rights and remedies that the Administrative Agent and each Bank, each Issuing Bank or the Borrower may at any time have against, or with respect to, such Defaulting Bank.time;
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