Common use of Defaulting Banks Clause in Contracts

Defaulting Banks. If for any reason any of the Banks shall fail or refuse to abide by its obligations under this Agreement (each a "Defaulting Bank"), then, in addition to the rights and remedies that may be available to the Agent and the other Banks at law and in equity, but subject to the notice and cure periods hereinafter set forth, such Defaulting Bank's right to participate in the administration of the Obligations and the Loan Documents, including without limitation, any rights to consent to or direct any action or inaction of the Agent or all of the Banks, or to be taken into 110 account in the calculation of a Bank Majority or a Bank Supermajority, shall be suspended during the pendency of such failure or refusal. A Bank shall be deemed to be a Defaulting Bank if: (i) Such Bank shall have failed to pay to the Agent any amount due pursuant to this Agreement within 5 Business Days after written notice by the Agent to such Bank stating such payment is due from such Bank to the Agent; (ii) Such Bank shall have failed to perform any of its other obligations under this Agreement or the Loan Documents in any material respect, and such failure shall not have been cured within 30 days after written notice by the Agent to such Bank of such failure, or if such failure cannot reasonably be cured within such 30 day period, within such longer period of time as may be necessary to complete such cure, so long as such Bank commences such cure within such 30-day period and thereafter diligently pursues such cure to completion within not more than 120 days after such written notice; or (iii) Such Bank shall institute or be subject to any bankruptcy, insolvency, receivership, conservatorship, reorganization, liquidation or similar proceedings under state or federal law; provided, however, in the case of a failure described in clause (i) or clause (ii) above, if within the 5-Business Day period described in clause (i) or the 30 day period described in clause (ii), as applicable, the Bank in question in good faith disputes such default and commences a dispute resolution procedure pursuant to Article 15 asserting that such default has not occurred (and provided that such Bank has satisfied its funding obligations pursuant to the provisions of Section 11.10), such Bank shall not be deemed to be a Defaulting Bank until such Bank is found to be in default pursuant to a binding resolution of such procedure (which may include a final determination in an arbitration proceeding under Section 15.1) and such Bank does not thereafter take the action necessary to cure the default (including, without limitation, paying any interest due pursuant to Section 11.10(h)) within the time specified for compliance in the arbitrator's order, or if no time for compliance is specified, within 10 Business Days following the date of the final determination.

Defaulting Banks. (a) If for any reason any of the Banks shall fail or refuse to abide by its obligations under this Agreement the Loan Documents (each a "Defaulting Bank"), then, in addition to the rights -50- and remedies that may be available to the Administrative Agent and the other Banks at law and in equity, but subject to the notice and cure periods hereinafter set forth, such Defaulting Bank's right to participate in the administration of the Obligations Loans and the Loan Documents, including without limitation, any rights to consent to or direct any action or inaction of the Agent or Administrative Agent, all of the Banks, or to be taken into 110 account in the calculation of the Required Banks (other than the right to vote with respect to a Bank Majority decision as to its Loans to extend the Expiration Date thereof, or a Bank Supermajorityto amend the interest rate and repayment provisions thereof or to modify such Bank's Commitment), shall be suspended during the pendency of such failure or refusal. A Bank shall be deemed to be a Defaulting Bank if: if (i) Such such Bank shall have failed to pay to the Administrative Agent any amount due pursuant to this Agreement within 5 five (5) Business Days after written notice by the Administrative Agent to such Bank stating such payment is due from such Bank to the Administrative Agent; ; (ii) Such such Bank shall have failed to perform any of its other obligations under this Agreement or the Loan Documents in any material respect, . and such failure shall not have been cured within 30 days after written notice by the Administrative Agent to such Bank of such failure, or if such failure cannot reasonably be cured within such 30 day period, within such longer period of time as may be necessary to complete such cure, so long as such Bank commences such cure within such 30-day period and thereafter diligently pursues such cure to completion within not more than 120 days after such written notice; or or (iii) Such such Bank shall institute or be subject to any bankruptcy, insolvency, receivership, conservatorship, reorganization, liquidation or similar proceedings under state or federal law; provided, however, in the case of a failure described in clause (i) or clause (ii) aboveof this sentence, if within the 5-Business Day period described in clause (i) or the 30 day period described in clause (ii), as applicable, the Bank in question in good faith disputes such default and commences a dispute resolution procedure pursuant to Article 15 asserting that such default has not occurred (and provided that such Bank has satisfied its funding obligations pursuant to the provisions of Section 11.102.4), such Bank shall not be deemed to be a Defaulting Bank until such Bank is found to be in default pursuant to a binding resolution of such procedure (which may include a final judicial or arbitration determination in an arbitration proceeding under Section 15.1) and such Bank does not thereafter take the action necessary to cure the default (including, without limitation, paying any interest due pursuant to Section 11.10(h)) within the time specified for compliance in the arbitrator's order, or if no time for compliance is specified, within 10 Business Days following the date of the final determination. (b) With respect to each Defaulting Bank, any Current Bank shall, in addition to any other rights or remedies available at law or equity, be entitled, in the case of the failure of a Defaulting Bank to pay its pro rata share (the "Defaulting Bank's Share") in a Loan made pursuant to Section 2.4, to pay to the Administrative Agent the Defaulting Bank's Share (pro rata if made by more than one Current Bank, based on the pro rata shares of the Current Banks making the payment). If one or more of the Current Banks pays the Defaulting Banks' Share, in addition to any other rights and remedies available to the Banks, each Current Bank making such payment may elect to do either of the following with respect to the payment made by such Current Bank: (ii) Receive all amounts which the Defaulting Bank would otherwise be entitled to receive pursuant to this Agreement with respect to the Defaulting Bank's Share (including interest accruing under the Loan Documents on the Loan, to the extent of the Defaulting Bank's Share of such Loan), pro rata according to the portion of the Defaulting Bank's Share paid by such Current Bank, until such Current Bank has been repaid the full amount of the Defaulting Bank's Share, together with accrued interest paid by the Borrower under the Agreement with respect thereto.

Defaulting Banks. If for any reason any of the Banks shall fail or refuse to abide by its obligations under this Agreement the Loan Documents (each a "Defaulting Bank"), then, in addition to the rights and remedies that may be available to the Agent Administrative Agent, the Co-Agents and the other Banks at law and in equity, but subject to the notice and cure periods hereinafter set forth, such Defaulting Bank's right to participate in the administration of the Obligations Loans and the Loan Documents, including without limitation, any rights to consent to or direct any action or inaction of the Agent or Administrative Agent, the Co-Agents, all of the Banks, or to be taken into 110 account in the calculation of the Required Banks (other than the right to vote with respect to a Bank Majority or a Bank Supermajoritydecision to extend the Maturity Date), shall be suspended during the pendency of such failure or refusal. A Bank shall be deemed to be a Defaulting Bank if: if (i) Such such Bank shall have failed to pay to the Administrative Agent any amount due pursuant to this Credit Agreement within 5 Business Days after written notice by the Administrative Agent to such Bank stating such payment is due from such Bank to the Administrative Agent; ; (ii) Such such Bank shall have failed to perform any of its other obligations under this Credit Agreement or the Loan Documents in any material respect, . and such failure shall not have been cured within 30 days after written notice by the Administrative Agent to such Bank of such failure, or if such failure cannot reasonably be cured within such 30 day period, within such longer period of time as may be necessary to complete such cure, so long as such Bank commences such cure within such 30-day period and thereafter diligently pursues such cure to completion within not more than 120 days after such written notice; or or (iii) Such such Bank shall institute or be subject to any bankruptcy, insolvency, receivership, conservatorship, reorganization, liquidation or similar proceedings under state or federal law; provided, however, in the case of a failure described in clause (i) or clause (ii) aboveof this sentence, if within the 5-Business Day period described in clause (i) or the 30 day period described in clause (ii), as applicable, the Bank in question in good faith disputes such default and commences a dispute resolution procedure pursuant to Article 15 asserting that such default has not occurred (and provided that such Bank has satisfied its funding obligations pursuant to the provisions of Section 11.102.2), such Bank shall not be deemed to be a Defaulting Bank until such Bank is found to be in default pursuant to a binding resolution of such procedure (which may include a final judicial or arbitration determination in an arbitration proceeding under Section 15.1) and such Bank does not thereafter take the action necessary to cure the default (including, without limitation, paying any interest due pursuant to Section 11.10(h)) within the time specified for compliance in the arbitrator's order, or if no time for compliance is specified, within 10 Business Days following the date of the final determination. If the Administrative Agent is a Defaulting Bank, the removal of the Administrative Agent may occur pursuant to Section 8.4. A Bank that is a "Defaulting Bank" under the Credit Agreement will automatically be deemed in default under this Credit Agreement and will also be a Defaulting Bank under this Credit Agreement.

Defaulting Banks. If Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank: (a) Any payment of principal, interest, fees or other amounts received by the Agent for the account of such Defaulting Bank (whether voluntary or mandatory, at maturity, pursuant to Section 9.2 or otherwise) or received by the Agent from a Defaulting Bank pursuant to Section 12.10 shall be applied at such time or times as may be determined by the Agent as follows: first, to the payment of any reason amounts owing by such Defaulting Bank to the Agent hereunder; second, unless a Default or Event of Default exists, as the Company may request to fund any Loan in respect of which such Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; third, to be held in a deposit account and released in order to satisfy such Defaulting Bank’s potential future funding obligations with respect to Loans under this Agreement; fourth, to the payment of any amounts owing to the Banks shall fail or refuse to abide as a result of any judgment of a court of competent jurisdiction obtained by any Bank against such Defaulting Bank as a result of such Defaulting Bank’s breach of its obligations under this Agreement (each a "Defaulting Bank")or under any other Credit Document; fifth, thenso long as no Default or Event of Default exists, in addition to the rights and remedies that may be available payment of any amounts owing to the Agent and Company as a result of any judgment of a court of competent jurisdiction obtained by the other Banks at law and in equity, but subject to the notice and cure periods hereinafter set forth, Company against such Defaulting Bank as a result of such Defaulting Bank's right to participate in the administration of the Obligations and the Loan Documents, including without limitation, any rights to consent to or direct any action or inaction of the Agent or all of the Banks, or to be taken into 110 account in the calculation of a Bank Majority or a Bank Supermajority, shall be suspended during the pendency of such failure or refusal. A Bank shall be deemed to be a Defaulting Bank if: (i) Such Bank shall have failed to pay to the Agent any amount due pursuant to this Agreement within 5 Business Days after written notice by the Agent to such Bank stating such payment is due from such Bank to the Agent; (ii) Such Bank shall have failed to perform any breach of its other obligations under this Agreement or under any other Credit Document; and sixth, 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 Loan Documents principal amount of any Loans in any material respectrespect of which such Defaulting Bank has not fully funded its appropriate share, and (y) such failure Loans were made at a time when the conditions set forth in Section 11.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of all non-Defaulting Banks on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Bank until such time as all Loans and funded are held by the Banks pro rata in accordance with the Commitments. Any payments, prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or held) to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this Section shall be deemed paid to and redirected by such Defaulting Bank, and each Bank irrevocably consents hereto. (b) The Commitment and Outstanding Credit Exposure of such Defaulting Bank shall not be included in determining whether the Majority Banks have been cured within 30 days after written notice by the Agent to such Bank of such failure, taken or if such failure cannot reasonably be cured within such 30 day period, within such longer period of time as may be necessary to complete such cure, so long as such Bank commences such cure within such 30-day period and thereafter diligently pursues such cure to completion within not more than 120 days after such written notice; or take any action hereunder (iii) Such Bank shall institute or be subject including any consent to any bankruptcy, insolvency, receivership, conservatorship, reorganization, liquidation amendment or similar proceedings under state or federal lawwaiver pursuant to Section 10.1); provided, howeverthat, except as otherwise provided in Section 10.1, this clause (b) shall not apply to the vote of a Defaulting Bank in the case of a failure described in clause (i) an amendment, waiver or clause (ii) above, if within other modification requiring the 5-Business Day period described in clause (i) or the 30 day period described in clause (ii), as applicable, the Bank in question in good faith disputes such default and commences a dispute resolution procedure pursuant to Article 15 asserting that such default has not occurred (and provided that consent of such Bank or each Bank directly affected thereby. (c) In the event that the Agent and the Company each agrees that a Defaulting Bank has satisfied its funding obligations pursuant to the provisions of Section 11.10), adequately remedied all matters that caused such Bank shall not be deemed to be a Defaulting Bank until Bank, then on such date such Bank is found shall purchase at par such of the Loans of the other Banks as the Agent shall determine may be necessary in order for such Bank to be hold such Loans in default pursuant accordance with its Pro Rata Share of the Aggregate Commitment. (d) Commitment Fees shall cease to a binding resolution accrue on the unfunded portion of the Commitment of such procedure (which may include a final determination in an arbitration proceeding under Section 15.1) and such Defaulting Bank does not thereafter take the action necessary to cure the default (including, without limitation, paying any interest due pursuant to Section 11.10(h)) within the time specified for compliance in the arbitrator's order2.5, or if no time for compliance is specified, within 10 Business Days following the date of the final determinationas applicable.

Defaulting Banks. (a) If for any reason any of the Banks shall fail or refuse to abide by its obligations under this Agreement the Loan Documents (each a "Defaulting Bank"), then, in addition to the rights and remedies that may be available to the Administrative Agent and the other Banks at law and in equity, but subject to the notice and cure periods hereinafter set forth, such Defaulting Bank's right to participate in the administration of the Obligations Loans and the Loan Documents, including without limitation, any rights to consent to or direct any action or inaction of the Agent or Administrative Agent, all of the Banks, or to be taken into 110 account in the calculation of the Required Banks (other than the right to vote with respect to a Bank Majority decision as to its Loans to extend the Maturity Date thereof, or a Bank Supermajorityto amend the interest rate and repayment provisions thereof or to modify such Bank's Commitment), shall be suspended during the pendency of such failure or refusal. A Bank shall be deemed to be a Defaulting Bank if: if (i) Such such Bank shall have failed to pay to the Administrative Agent any amount due pursuant to this Agreement within 5 five (5) Business Days after written notice by the Administrative Agent to such Bank stating such payment is due from such Bank to the Administrative Agent; ; (ii) Such such Bank shall have failed to perform any of its other obligations under this Agreement or the Loan Documents in any material respect, . and such failure shall not have been cured within 30 days after written notice by the Administrative Agent to such Bank of such failure, or if such failure cannot reasonably be cured within such 30 day period, within such longer period of time as may be necessary to complete such -48- cure, so long as such Bank commences such cure within such 30-day period and thereafter diligently pursues such cure to completion within not more than 120 days after such written notice; or or (iii) Such such Bank shall institute or be subject to any bankruptcy, insolvency, receivership, conservatorship, reorganization, liquidation or similar proceedings under state or federal law; provided, however, in the case of a failure described in clause (i) or clause (ii) aboveof this sentence, if within the 5-Business Day period described in clause (i) or the 30 day period described in clause (ii), as applicable, the Bank in question in good faith disputes such default and commences a dispute resolution procedure pursuant to Article 15 asserting that such default has not occurred (and provided that such Bank has satisfied its funding obligations pursuant to the provisions of Section 11.102.4), such Bank shall not be deemed to be a Defaulting Bank until such Bank is found to be in default pursuant to a binding resolution of such procedure (which may include a final judicial or arbitration determination in an arbitration proceeding under Section 15.1) and such Bank does not thereafter take the action necessary to cure the default (including, without limitation, paying any interest due pursuant to Section 11.10(h)) within the time specified for compliance in the arbitrator's order, or if no time for compliance is specified, within 10 Business Days following the date of the final determination. (b) With respect to each Defaulting Bank, any Current Bank shall, in addition to any other rights or remedies available at law or equity, be entitled, in the case of the failure of a Defaulting Bank to pay its pro rata share (the "Defaulting Bank's Share") in a Loan made pursuant to Section 2.4, to pay to the Administrative Agent the Defaulting Bank's Share (pro rata if made by more than one Current Bank, based on the pro rata shares of the Current Banks making the payment). If one or more of the Current Banks pays the Defaulting Banks' Share, in addition to any other rights and remedies available to the Banks, each Current Bank making such payment may elect to do either of the following with respect to the payment made by such Current Bank: (i) Notify the Administrative Agent to adjust the pro rata shares of the Defaulting Bank and the Current Bank making payment of the Defaulting Bank's Share, allocating the Defaulting Bank's Share to the Current Bank as of the date the Loan was made; or (ii) Receive all amounts which the Defaulting Bank would otherwise be entitled to receive pursuant to this Agreement with respect to the Defaulting Bank's Share (including interest accruing under the Loan Documents on the Loan, to the extent of the Defaulting Bank's Share of such Loan), pro rata according to the portion of the Defaulting Bank's Share paid by such Current Bank, until such Current Bank has been repaid the full amount of the Defaulting Bank's Share, together with accrued interest paid by the Borrower under the Agreement with respect thereto.

Defaulting Banks. (a) If for any reason any of the Banks shall fail or refuse to abide by its obligations under this Agreement the Loan Documents (each a "Defaulting Bank"), then, in addition to the rights and remedies that may be available to the Administrative Agent and the other Banks at law and in equity, but subject to the notice and cure periods hereinafter set forth, such Defaulting Bank's right to participate in the administration of the Obligations Loans and the Loan Documents, including without limitation, any rights to consent to or direct any action or inaction of the Agent or Administrative Agent, all of the Banks, or to be taken into 110 account in the calculation of the Required Banks (other than the right to vote with respect to a Bank Majority decision as to its Loans to extend the Expiration Date thereof, or a Bank Supermajorityto amend the interest rate and repayment provisions thereof or to modify such Bank's Commitment), shall be suspended during the pendency of such failure or refusal. A Bank shall be deemed to be a Defaulting Bank if: if (i) Such such Bank shall have failed to pay to the Administrative Agent any amount due pursuant to this Agreement within 5 five (5) Business Days after written -50- notice by the Administrative Agent to such Bank stating such payment is due from such Bank to the Administrative Agent; ; (ii) Such such Bank shall have failed to perform any of its other obligations under this Agreement or the Loan Documents in any material respect, . and such failure shall not have been cured within 30 days after written notice by the Administrative Agent to such Bank of such failure, or if such failure cannot reasonably be cured within such 30 day period, within such longer period of time as may be necessary to complete such cure, so long as such Bank commences such cure within such 30-day period and thereafter diligently pursues such cure to completion within not more than 120 days after such written notice; or or (iii) Such such Bank shall institute or be subject to any bankruptcy, insolvency, receivership, conservatorship, reorganization, liquidation or similar proceedings under state or federal law; provided, however, in the case of a failure described in clause (i) or clause (ii) aboveof this sentence, if within the 5-Business Day period described in clause (i) or the 30 day period described in clause (ii), as applicable, the Bank in question in good faith disputes such default and commences a dispute resolution procedure pursuant to Article 15 asserting that such default has not occurred (and provided that such Bank has satisfied its funding obligations pursuant to the provisions of Section 11.102.4), such Bank shall not be deemed to be a Defaulting Bank until such Bank is found to be in default pursuant to a binding resolution of such procedure (which may include a final judicial or arbitration determination in an arbitration proceeding under Section 15.1) and such Bank does not thereafter take the action necessary to cure the default (including, without limitation, paying any interest due pursuant to Section 11.10(h)) within the time specified for compliance in the arbitrator's order, or if no time for compliance is specified, within 10 Business Days following the date of the final determination. (b) With respect to each Defaulting Bank, any Current Bank shall, in addition to any other rights or remedies available at law or equity, be entitled, in the case of the failure of a Defaulting Bank to pay its pro rata share (the "Defaulting Bank's Share") in a Loan made pursuant to Section 2.4, to pay to the Administrative Agent the Defaulting Bank's Share (pro rata if made by more than one Current Bank, based on the pro rata shares of the Current Banks making the payment). If one or more of the Current Banks pays the Defaulting Banks' Share, in addition to any other rights and remedies available to the Banks, each Current Bank making such payment may elect to do either of the following with respect to the payment made by such Current Bank: (i) Notify the Administrative Agent to adjust the pro rata shares of the Defaulting Bank and the Current Bank making payment of the Defaulting Bank's Share, allocating the Defaulting Bank's Share to the Current Bank as of the date the Loan was made; or (ii) Receive all amounts which the Defaulting Bank would otherwise be entitled to receive pursuant to this Agreement with respect to the Defaulting Bank's Share (including interest accruing under the Loan Documents on the Loan, to the extent of the Defaulting Bank's Share of such Loan), pro rata according to the portion of the Defaulting Bank's Share paid by such Current Bank, until such Current Bank has been repaid the full amount of the Defaulting Bank's Share, together with accrued interest paid by the Borrower under the Agreement with respect thereto.

Defaulting Banks. If Notwithstanding anything to the contrary contained in this Agreement, if any Bank becomes a Defaulting Bank, then, until such time as such Bank is no longer a Defaulting Bank, to the extent permitted by applicable law: (i) such Defaulting Bank’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in §15.9; (ii) any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any reason such Bank on account of such Bank’s Syndicated Loans or from such Bank pursuant to §13, shall be applied by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Bank to the Issuing Banks or Swing Line Bank hereunder; third, if so determined by the Administrative Agent or requested by the Issuing Banks or Swing Line Bank, to be held as cash collateral for future funding obligations of that Defaulting Bank of any participation in any Swing Line Loan or Letter of Credit (and each such Bank hereby grants to the Administrative Agent a security interest therein); fourth, if the Borrower so requests (so long as no Default or Event of Default exists), to the funding of any Syndicated Loan in respect of which that Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Bank to fund Syndicated Loans under this Agreement; sixth, to the payment of any amounts owing to the Banks shall fail or refuse to abide as a result of any judgment of a court of competent jurisdiction obtained by any Bank against that Defaulting Bank as a result of that Defaulting Bank’s breach of its obligations under this Agreement (each 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 that Defaulting Bank as a result of that Defaulting Bank")’s breach of its obligations under this Agreement; and eighth, thento that 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 Syndicated Loans or Letter of Credit Participations in addition respect of which that Defaulting Bank has not fully funded its appropriate share and (y) such Loans or Letter of Credit Participations were made at a time when the conditions set forth in §11 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Letter of Credit Participations owed to, all non-Defaulting Banks on a pro rata basis prior to being applied to the rights payment of any Loans of, or Letter of Credit Participations owed to, that Defaulting Bank (and remedies any such amounts paid or payable to a Defaulting Bank that may are applied to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this §5.14 shall be available deemed paid to the Agent and the other Banks at law and in equity, but subject to the notice and cure periods hereinafter set forth, redirected by such Defaulting Bank's , and each Bank irrevocably consents hereto); (iii) such Defaulting Bank (x) shall be entitled to receive Facility Fees only to extent allocable to the sum of (1) the outstanding amount of the Syndicated Loans funded by it and (2) its Commitment Percentage of the stated amount of Letters of Credit and Swing Line Loans for which it has provided cash collateral or other credit support satisfactory to each Issuing Bank (in its sole discretion) and the Swing Line Bank (in its sole discretion) (and the Borrower shall (A) be required to pay to each Issuing Bank and the Swing Line Bank, as applicable, the amount of such Facility Fee allocable to its fronting exposure arising from that Defaulting Bank and (B) not be required to pay the remaining amount of such fee that otherwise would have been required to have been paid to that Defaulting Bank) and (y) shall be limited in its right to participate receive Letter of Credit Fees as provided in §3.6; (iv) for purposes of computing the administration amount of the Obligations and the Loan Documentsobligation of each non-Defaulting Bank to acquire, including refinance or fund participations in Letters of Credit or Swing Line Loans hereunder, including, without limitation, any rights under §3.1(c), the “Commitment Percentage” of each non-Defaulting Bank shall be computed without giving effect to consent the Commitment of that Defaulting Bank using a fraction the numerator of which is the Commitment of such non-Defaulting Bank and the denominator of which is the aggregate Commitments of all non-Defaulting Banks; provided, that, (A) the foregoing change in computation shall be given effect only if, at the date the applicable Bank becomes a Defaulting Bank, no Default or Event of Default exists, and (B) the aggregate obligation of each non-Defaulting Bank to acquire, refinance or direct any action or inaction fund participations in Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of (1) the Commitment of that non-Defaulting Bank minus (2) the aggregate outstanding amount of the Syndicated Loans of that non-Defaulting Bank; and (v) immediately upon the request of the Administrative Agent, the Swing Line Bank or any Issuing Bank and provided that such Defaulting Bank has not provided cash collateral or other credit support satisfactory to the Administrative Agent, the Swing Line Bank or each such Issuing Bank (in its sole discretion) (which each Bank hereby agrees to provide in the event that it becomes a Defaulting Bank), the Borrower shall (A) first, prepay Swing Line Loans in an amount equal to the Swing Line Bank’s fronting exposure for the Defaulting Bank’s participation in any outstanding Swing Line Loans and (B) second, deliver to the Administrative Agent cash collateral or other credit support satisfactory to the Administrative Agent or all of each such Issuing Bank (in its sole discretion) (and the Banks, or Borrower hereby grants to be taken into 110 account the Administrative Agent a security interest therein) in an amount sufficient to cover the calculation of a Bank Majority or a Bank Supermajority, shall be suspended during the pendency fronting exposure of such failure Persons for the Defaulting Bank’s participation in any outstanding Letters of Credit, in each case, after giving effect to the reallocation of such exposure to the non-Defaulting Banks pursuant to clause (iv) above and any cash collateral or refusalother credit support provided by the Defaulting Bank. A If the Borrower, the Administrative Agent, the Swing Line Bank shall and the Issuing Banks agree in writing in their sole discretion that a Defaulting Bank should no longer be deemed to be a Defaulting Bank if: (i) Such Bank shall have failed to pay to Bank, the Administrative Agent any amount due pursuant to this Agreement within 5 Business Days after written will so notify the parties hereto, whereupon as of the effective date specified in such notice by the Agent to such Bank stating such payment is due from such Bank to the Agent; (ii) Such Bank shall have failed to perform any of its other obligations under this Agreement or the Loan Documents in any material respect, and such failure shall not have been cured within 30 days after written notice by the Agent to such Bank of such failure, or if such failure cannot reasonably be cured within such 30 day period, within such longer period of time as may be necessary to complete such cure, so long as such Bank commences such cure within such 30-day period and thereafter diligently pursues such cure to completion within not more than 120 days after such written notice; or (iii) Such Bank shall institute or be subject to any bankruptcy, insolvency, receivership, conservatorship, reorganization, liquidation conditions set forth therein (which may include arrangements with respect to any cash collateral or similar proceedings under state or federal law; provided, however, in other credit support satisfactory to the case of a failure described in clause (i) or clause (ii) above, if within the 5-Business Day period described in clause (i) or the 30 day period described in clause (ii), as applicableAdministrative Agent, the Swing Line Bank in question in good faith disputes such default and commences a dispute resolution procedure pursuant to Article 15 asserting that such default has not occurred (and provided that such Bank has satisfied its funding obligations pursuant to the provisions of Section 11.10each applicable Issuing Bank), such Bank shall will purchase at par such portion of outstanding Syndicated Loans of the other Banks or take such other actions as the Administrative Agent may determine to be necessary to cause the Syndicated Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Banks in accordance with their Commitment Percentages (disregarding any portions not be deemed funded by other Defaulting Banks), whereupon such Bank will cease to be a Defaulting Bank until Bank; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while such Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank. So long as any Bank is found a Defaulting Bank, the Swing Line Bank shall not be required to be in default pursuant fund any Swing Line Loans unless it is satisfied that it will have no actual or potential fronting exposure with respect to a binding resolution of such procedure (which may include a final determination in an arbitration proceeding under Section 15.1) and Defaulting Bank after giving effect to such Bank does not thereafter take the action necessary to cure the default (including, without limitation, paying any interest due pursuant to Section 11.10(h)) within the time specified for compliance in the arbitrator's order, or if no time for compliance is specified, within 10 Business Days following the date of the final determinationSwing Line Loan.

Defaulting Banks. If (a) Any one or more of the following shall constitute a default by a Bank under this Agreement and such Bank shall be deemed a “Defaulting Bank” for purposes of this Agreement: (i) if a Bank has failed, within two (2) Business Days of the date required to be funded or paid, to (A) fund any reason portion of its Commitment, (B) pay over to Agent or any other Bank any other amount required to be paid by it hereunder, unless in the case of clause (A) above, such Bank notifies Agent in writing that such failure is the result of such Bank’s good faith determination that a condition precedent to funding (specifically identified and including the particular Event of Default, if any) has not been satisfied; or (C) perform any other obligation of such Bank contained in the Loan Documents; (ii) if a Bank has notified Borrower, Agent or any other Bank in writing, or has made a public statement, to the effect that it does not intend or expect to comply with any of the Banks shall fail or refuse to abide by its funding obligations under this Agreement (each unless such writing or public statement indicates that such position is based on such Bank’s good faith determination that a "condition precedent to funding (specifically identified and including the particular Event of Default, if any) cannot be satisfied) or generally under other agreements in which it commits to extend credit; (iii) if a Bank has failed, within three (3) Business Days after request by Agent or any Bank, acting in good faith, to provide a certification in writing from an authorized officer of such Bank that it will comply with its obligations to fund under this Agreement, provided that such Bank shall cease to be a Defaulting Bank pursuant to this clause (iii), upon Agent’s or such Bank’s receipt of such certification in form and substance satisfactory to it and Agent; (iv) if any proceeding is commenced which involves the dissolution, termination of existence, insolvency or business failure of any Bank; (v) the appointment of a receiver for any part of the property of a Bank; (vi) the assignment for the benefit of creditors of a Bank or any proceeding is commenced under any bankruptcy or insolvency law, state or federal, by or against a Bank. (b) If any Bank fails to fund its portion of an Advance, in whole or in part, within three (3) Business Days after the date required hereunder and Agent shall not have funded the Defaulting Bank"), then, in addition ’s portion of the Advance pursuant to the rights and remedies that terms of this Agreement, any other Bank, by written notice to Agent at such Bank’s sole option, may (but shall not be available to the Agent and the other Banks at law and in equity, but subject to the notice and cure periods hereinafter set forth, obligated to) fund such amounts on behalf of such Defaulting Bank's right . If more than one Bank elects to participate in fund a Defaulting Bank’s share, then each such Bank shall fund on a pro rata basis, based on their respective Commitment Percentages (which, for purposes of this determination only, shall be calculated excluding the administration Defaulting Bank’s Commitment), and shall be entitled to reimbursement from the Defaulting Bank on demand of the Obligations amount so funded. If such reimbursement is not made on demand, then until such time as full reimbursement is received, Bank or Banks that are entitled to the reimbursement shall be entitled to receive the next moneys becoming payable to the Defaulting Bank in order to recover such reimbursement. Whether or not a Bank funds such amounts on behalf of such Defaulting Bank, the following provisions shall apply: (a) Subject to the right of a Bank which has funded the Defaulting Bank’s Commitment Percentage to reimbursement thereof as provided above, Agent may, but shall not be obligated to, withhold and apply any and all amounts payable to the Defaulting Bank pursuant to this Agreement in such order of priority as Agent shall determine, in its sole discretion: (A) to fund the Defaulting Bank’s Commitment Percentage of any Draw Request which the Defaulting Bank is obligated to fund pursuant to the Loan DocumentsDocuments and this Agreement, including without limitationand (B) to reimburse Agent for the Defaulting Bank’s Commitment Percentage of any costs, expenses or disbursements incurred or made by Agent pursuant to this Agreement; and L’Auberge de Sonoma - 87 - Building Loan Agreement/Disbursement Schedule (b) Agent may exercise any rights to consent to or direct any action or inaction of the Agent combination or all of the Banksremedies set forth above, or any other remedies available at law or in equity. (c) The right of a Defaulting Bank to consent, approve or disapprove of any matter under this Agreement or otherwise in connection with the Loan or the Project, or receive payments from Agent, or exercise the rights granted herein to purchase the interest of Banks in the Loan, or to be taken into 110 account in fund the calculation Commitment Percentage of a Bank Majority or a Bank Supermajorityanother Defaulting Bank, shall be suspended during the pendency period such Bank is in default hereunder (the “Suspension Period”). During any Suspension Period, the Commitment Percentage of such failure or refusal. A each Bank shall be deemed to be a Defaulting Bank if: (i) Such Bank shall have failed to pay to the Agent recalculated, solely for purposes of consenting, approving or disapproving of any amount due pursuant to this Agreement within 5 Business Days after written notice by the Agent to such Bank stating such payment is due from such Bank to the Agent; (ii) Such Bank shall have failed to perform any of its other obligations matter under this Agreement or otherwise in connection with the Loan or the Project or to receive payments from Agent, to proportionately increase each Bank’s Commitment Percentages as if the Defaulting Bank did not have an interest in the Loan. Such recalculation shall not increase the Commitment Percentage of any non-defaulting Bank for the purposes of funding Advances, except to the extent that a non-defaulting Bank has agreed to fund the Defaulting Bank’s share of such Draw Request or other payment due. (d) All amounts payable hereunder to the Defaulting Bank in respect of the obligations of Borrower under the Loan Documents in any material respect(whether on account of principal, and such failure shall not have been cured within 30 days after written notice by the Agent to such Bank of such failureinterest, fees or if such failure cannot reasonably be cured within such 30 day periodotherwise, within such longer period of time as may be necessary to complete such cure, so long as such Bank commences such cure within such 30-day period and thereafter diligently pursues such cure to completion within not more than 120 days after such written notice; or (iii) Such Bank shall institute or be subject to any bankruptcy, insolvency, receivership, conservatorship, reorganization, liquidation or similar proceedings under state or federal law; provided, however, in the case of a failure described in clause (i) or clause (ii) above, if within the 5-Business Day period described in clause (i) or the 30 day period described in clause (ii), as applicable, the Bank in question in good faith disputes such default and commences a dispute resolution procedure pursuant to Article 15 asserting that such default has not occurred (and provided that such Bank has satisfied its funding obligations pursuant to the provisions of Section 11.10), such Bank shall not be deemed to be a Defaulting Bank until such Bank is found to be in default pursuant to a binding resolution of such procedure (which may include a final determination in an arbitration proceeding under Section 15.1) and such Bank does not thereafter take the action necessary to cure the default (including, without limitation, paying interest payments from interest reserve allocations to the Defaulting Bank and any amounts that would otherwise be payable to the Defaulting Bank), shall be paid to Agent, retained in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by Agent as follows: (i) first, to the payment of any amounts owing by the Defaulting Bank to Agent hereunder, (ii) second, to the funding of any Advance in respect of which the Defaulting Bank has failed to fund its portion as required by this Agreement, as determined by Agent, (iii) third, to the payment of any amounts owing by the Defaulting Bank to the non-defaulting Banks hereunder, (iv) fourth, if so determined by Agent and Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Bank under this Agreement, and (v) fifth, to the Defaulting Bank or as otherwise directed by a court of competent jurisdiction; provided that if such payment is (A) a prepayment of the principal amount of all or any portion of the Loan and (B) made at a time when the conditions set forth in Section 5.2 are satisfied, such payment shall be applied solely to repay the portion of the Loan of all non-defaulting Banks pro rata prior to being applied to the prepayment of the portion of the Loan owed to the Defaulting Bank. (e) Upon the occurrence of any default set forth in Section 22.318.3, in addition to all other remedies available at law or in equity, then Agent or any Bank that is not a Defaulting Bank, shall have the right (but not the obligation) to purchase on a pro rata basis, based upon their respective Commitment Percentages, the interest in the Loan owed by such Defaulting Bank, at par value plus accrued interest and any other amounts due to such Bank. Any such purchase by a Bank shall be completed within forty-five (45) days after the election to do so is made. At the closing of the sale, the selling Bank shall assign to the purchasing Bank(s) its entire interest in the Loan, the Loan Documents and its Note pursuant to Section 11.10(h)) within an Assignment and Acceptance Agreement. Any Bank not in default shall also each have the time specified right to maintain an action for compliance in specific performance against the arbitrator's order, or if no time for compliance is specified, within 10 Business Days following the date of the final determinationDefaulting Bank to enforce its respective rights under this Agreement.

Defaulting Banks. If Notwithstanding anything to the contrary contained in this Agreement, if any Bank becomes a Defaulting Bank, then, until such time as such Bank is no longer a Defaulting Bank, to the extent permitted by applicable law: (i) such Defaulting Bank’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in §15.9; (ii) any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any reason such Bank on account of such Bank’s Syndicated Loans or from such Bank pursuant to §13, shall be applied by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Bank to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Bank to the Issuing Banks or Swing Line Bank hereunder; third, if so determined by the Administrative Agent or requested by the Issuing Banks or Swing Line Bank, to be held as cash collateral for future funding obligations of that Defaulting Bank of any participation in any Swing Line Loan or Letter of Credit (and each such Bank hereby grants to the Administrative Agent a security interest therein); fourth, if the Borrower so requests (so long as no Default or Event of Default exists), to the funding of any Syndicated Loan in respect of which that Defaulting Bank has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Bank to fund Syndicated Loans under this Agreement; sixth, to the payment of any amounts owing to the Banks shall fail or refuse to abide as a result of any judgment of a court of competent jurisdiction obtained by any Bank against that Defaulting Bank as a result of that Defaulting Bank’s breach of its obligations under this Agreement (each 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 that Defaulting Bank as a result of that Defaulting Bank")’s breach of its obligations under this Agreement; and eighth, thento that 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 Syndicated Loans or Letter of Credit Participations in addition respect of which that Defaulting Bank has not fully funded its appropriate share and (y) such Loans or Letter of Credit Participations were made at a time when the conditions set forth in §11 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Letter of Credit Participations owed to, all non-Defaulting Banks on a pro rata basis prior to being applied to the rights payment of any Loans of, or Letter of Credit Participations owed to, that Defaulting Bank (and remedies any such amounts paid or payable to a Defaulting Bank that may are applied to pay amounts owed by a Defaulting Bank or to post cash collateral pursuant to this §5.14 shall be available deemed paid to the Agent and the other Banks at law and in equity, but subject to the notice and cure periods hereinafter set forth, redirected by such Defaulting Bank's , and each Bank irrevocably consents hereto); (iii) such Defaulting Bank (x) shall be entitled to receive Facility Fees only to extent allocable to the sum of (1) the outstanding amount of the Syndicated Loans funded by it and (2) its Commitment Percentage of the stated amount of Letters of Credit and Swing Line Loans for which it has provided cash collateral or other credit support satisfactory to each Issuing Bank (in its sole discretion) and the Swing Line Bank (in its sole discretion)(and the Borrower shall (A) be required to pay to each Issuing Bank and the Swing Line Bank, as applicable, the amount of such Facility Fee allocable to its fronting exposure arising from that Defaulting Bank and (B) not be required to pay the remaining amount of such fee that otherwise would have been required to have been paid to that Defaulting Bank) and (y) shall be limited in its right to participate receive Letter of Credit Fees as provided in §3.6; (iv) for purposes of computing the administration amount of the Obligations and the Loan Documentsobligation of each non-Defaulting Bank to acquire, including refinance or fund participations in Letters of Credit or Swing Line Loans hereunder, including, without limitation, any rights under §3.1(c), the “Commitment Percentage” of each non-Defaulting Bank shall be computed without giving effect to consent the Commitment of that Defaulting Bank using a fraction the numerator of which is the Commitment of such non-Defaulting Bank and the denominator of which is the aggregate Commitments of all non-Defaulting Banks; provided, that, (A) the foregoing change in computation shall be given effect only if, at the date the applicable Bank becomes a Defaulting Bank, no Default or Event of Default exists, and (B) the aggregate obligation of each non-Defaulting Bank to acquire, refinance or direct any action or inaction fund participations in Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of (1) the Commitment of that non-Defaulting Bank minus (2) the aggregate outstanding amount of the Syndicated Loans of that non-Defaulting Bank; and (v) immediately upon the request of the Administrative Agent, the Swing Line Bank or any Issuing Bank and provided that such Defaulting Bank has not provided cash collateral or other credit support satisfactory to the Administrative Agent, the Swing Line Bank or each such Issuing Bank (in its sole discretion) (which each Bank hereby agrees to provide in the event that it becomes a Defaulting Bank), the Borrower shall (A) first, prepay Swing Line Loans in an amount equal to the Swing Line Bank’s fronting exposure for the Defaulting Bank’s participation of in any outstanding Swing Line Loans and (B) second, deliver to the Administrative Agent cash collateral or other credit support satisfactory to the Administrative Agent or all of each such Issuing Bank (in its sole discretion) (and the Banks, or Borrower hereby grants to be taken into 110 account the Administrative Agent a security interest therein) in an amount sufficient to cover the calculation of a Bank Majority or a Bank Supermajority, shall be suspended during the pendency fronting exposure of such failure Persons for the Defaulting Bank’s participation in any outstanding Letters of Credit, in each case, after giving effect to the reallocation of such exposure to the non-Defaulting Banks pursuant to clause (iv) above and any cash collateral or refusalother credit support provided by the Defaulting Bank. A If the Borrower, the Administrative Agent, the Swing Line Bank shall and the Issuing Banks agree in writing in their sole discretion that a Defaulting Bank should no longer be deemed to be a Defaulting Bank if: (i) Such Bank shall have failed to pay to Bank, the Administrative Agent any amount due pursuant to this Agreement within 5 Business Days after written will so notify the parties hereto, whereupon as of the effective date specified in such notice by the Agent to such Bank stating such payment is due from such Bank to the Agent; (ii) Such Bank shall have failed to perform any of its other obligations under this Agreement or the Loan Documents in any material respect, and such failure shall not have been cured within 30 days after written notice by the Agent to such Bank of such failure, or if such failure cannot reasonably be cured within such 30 day period, within such longer period of time as may be necessary to complete such cure, so long as such Bank commences such cure within such 30-day period and thereafter diligently pursues such cure to completion within not more than 120 days after such written notice; or (iii) Such Bank shall institute or be subject to any bankruptcy, insolvency, receivership, conservatorship, reorganization, liquidation conditions set forth therein (which may include arrangements with respect to any cash collateral or similar proceedings under state or federal law; provided, however, in other credit support satisfactory to the case of a failure described in clause (i) or clause (ii) above, if within the 5-Business Day period described in clause (i) or the 30 day period described in clause (ii), as applicableAdministrative Agent, the Swing Line Bank in question in good faith disputes such default and commences a dispute resolution procedure pursuant to Article 15 asserting that such default has not occurred (and provided that such Bank has satisfied its funding obligations pursuant to the provisions of Section 11.10each applicable Issuing Bank), such Bank shall will purchase such portion of outstanding Syndicated Loans of the other Banks or take such other actions as the Administrative Agent may determine to be necessary to cause the Syndicated Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Banks in accordance with their Commitment Percentages (disregarding any portions not be deemed funded by other Defaulting Banks), whereupon such Bank will cease to be a Defaulting Bank until Bank; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while such Bank was a Defaulting Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Bank to Bank will constitute a waiver or release of any claim of any party hereunder arising from such Bank’s having been a Defaulting Bank. So long as any Bank is found a Defaulting Bank, the Swing Line Bank shall not be required to be in default pursuant fund any Swing Line Loans unless it is satisfied that it will have no actual or potential fronting exposure with respect to a binding resolution of such procedure (which may include a final determination in an arbitration proceeding under Section 15.1) and Defaulting Bank after giving effect to such Bank does not thereafter take the action necessary to cure the default (including, without limitation, paying any interest due pursuant to Section 11.10(h)) within the time specified for compliance in the arbitrator's order, or if no time for compliance is specified, within 10 Business Days following the date of the final determinationSwing Line Loan.